Volume 69 — Connecticut Reports

Action to recover for the support of a pauper claimed to be legally chargeable to the defendant town, brought to the Superior Court in Middlesex County and tried to the court, Ralph Wheéler, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court. The town of Bridgewater was also a party defendant, but obtained judgment in its favor upon demurrer to the complaint.

Petition by a receiver, for instructions brought to the Superior Court in Hartford County and reserved by that court, George W. Wheeler, Jfor the consideration and advice of this court. The case is sufficiently stated in the opinion.

Action for an entry on tide-water flats and a trespass by cutting off the plaintiff’s piles, brought by appeal from the judgment of a justice of the peace to the Court of Common Pleas for Fairfield County, and tried to the court, Curtis, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff for alleged errors in the rulings of the court.

Suit to restrain the defendants from selling certain real estate of the plaintiff, or placing any lien thereon, brought to the Superior Court of Middlesex County and tried to the court, Hall, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Shit to restrain the defendants from constructing an electric railway,brought to the Superior Court in Hartford County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff upon the first count, and for the defendants upon the second count, and appeal by both parties for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Suit for the reformation of a building contract, for an injunction and for damages, brought to the City Court of Hartford and tried to the court, McManus, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendant for alleged errors in the rulings of the court. The plaintiffs are builders, and contracted with defendant to do the carpenter and mason work on a house to be erected for the defendant on his land.

Suit for an injunction to restrain the payment of a trust fund., for an order of interpleader and for other equitable relief, brought to the Superior Court in Hartford 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. The case is sufficiently stated in the opinion.

<p>Where the conduct relied upon to establish an equitable estoppel is mere omission or neglect, the question of intent is material and is to be determined largely as one of fact.</p> <p>The plaintiff, the owner of a horse, wagon and harness, permitted her brother to use them in his market and grocery business, and did not object when she found he had painted his name and business on the wagon. She had no pecuniary interest in his business, and acted in entire good faith and without any thought that the property would be liable to attachment for his debts, or that her action would in anywise deceive his creditors or give him false credit. Held that these facts were merely evidential, and not conclusive, as matter of law, that the plaintiff had placed the property in the possession of her brother with the intent to represent him as the actual owner.</p> <p>The plaintiff knew that the wagon had been attached some months previous, in a suit against her brother, and that the attachment had been released; but this was after the credit had been given to her brother by those claiming the benefit of the estoppel. Held that her knowledge of these facts did not affect her right of recovery.</p>

<p>An illegal sale of liquor made by an agent within the scope of his agency, is in legal effect an act of his principal, and may be alleged as such.</p> <p>In the case at bar the State claimed to have proved that the sale was made by P as the agent of the defendant, in the latter’s hotel bar-room, of which P was then in charge; and that P was then and there acting in the place and stead of the defendant in making such sale. The court charged the jury that if they were satisfied beyond a reasonable doubt that P was left in charge of the hotel, as claimed by the State, and was the agent of the defendant and stood there in his place, acting for him at the time of the alleged sale, and did in fact sell the liquor, then the offense had been proven. Held that this charge, when read, as it should be, in the light of the evidence and of the claims made thereon, was sufficiently explicit for the guidance of the jury, and was not fairly open to the objection that it authorized a conviction although the jury might not find that P was the defendant’s agent for the purpose of making the sale charged. (One judge dissenting.)</p>

Action to recover damages for the alleged wrongful seizure and removal of a piano in the possession of the plaintiff, brought to the Court of Common Pleas in Hartford County and tried to the jury before Galhoun, J.; verdict and judgment for the plaintiff, and appeal by the defendant for alleged errors in the charge of the court. The complaint alleges the taking and conversion of a piano, in violation of a conditional contract of sale.

Action for damages for the alleged negligence of the defendants in building and maintaining a fence, brought to the City Court of Hartford and tried to the court, McManus, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants for alleged errors in the rulings of the court.

Action to recover damages for personal injuries received through the alleged negligence of the defendant, brought to the Superior Court in Hartford County and heard in damages to the court, Q-eorge W. Wheeler, J.; facts found and judgment rendered for the plaintiff for $1,000, and appeal by the defendant for alleged errors in the rulings of the court.

Shit praying that the title to certain real estate might be vested in the plaintiff, brought to the Superior Court iu Hartford County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff, and appeal hy the defendants for alleged errors in “the rulings of the court. The case is sufficiently stated in the opinion.

Suit to restrain the defendant from maintaining an addition to his building in a yard claimed to be owned by the parties in common, brought to the Superior Court in Hartford County and tried to the court, George W. 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 sufficiently stated in the opinion.

Information for a violation of the statute relating to “peach j'ellows,” brought to the Superior Court in New London County and tried to the jury before Shumway, J.; verdict and judgment of guilty, and appeal by the defendant for alleged errors in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Shit to restrain the defendants from building an electric railwa3r over a specified route, claimed to be unauthorized, brought to the Superior Court in Hartford County and tried to the court, George W. Wheeler, J., upon the defendants’ demurrer to the complaint; at the request of the parties the court sustained, pro forma, the demurrer, and dismissed the complaint, and the plaintiff appealed for alleged errors in the rulings of the court.

Prosecution for felonious assault with intent to procure a miscarriage and abortion, brought to the Superior Court in New Haven County and tried to the jury before Thayer, J.; verdict and judgment of guilty, and appeal by the accused for alleged errors in the rulings and charge of the court. The accused also filed two motions for a new trial for a verdict against evidence, both of which were denied or overruled by the court below.

Action to recover damages for negligence in causing the death of a mule, brought to the Court of Common Pleas in New Haven County and tried to the court, Studley, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court. The rulings on demurrer were made by Hotchkiss, J. The case is sufficiently stated in the opinion.

Action to recover the amount of a soldier’s bounty, brought to the District Court of Waterbury and reserved by that court, Bradstreet, J., upon demurrer to the complaint, for the consideration. and advice of this court. The amended complaint is as follows: “1. On August 22d, 1868, the plaintiff was a legal resident of said town of Waterbury. 2.

Prosecution of the defendant for unlawfully refusing and neglecting to support his wife, brought to the City Court of New Haven and thence by the defendant’s appeal to the criminal side of the Court of Common Pleas in New Haven County, and 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. The case is sufficiently stated in the opinion.

Action to recover damages for personal injuries claimed to have been caused by a defective highway, brought to the District Court of Waterbury, Bradstreet, J., where the plaintiff recovered a judgment for $5,000, and thence by the defendant’s appeal to the Superior Court for New Haven County where the case was tried to the jury before Elmer, J.; verdict and judgment for the .pl&intiff for $6,000 damages, and appeal by the defendant for alleged errors in the rulings and…

Information in the nature of quo warranto, brought to the Superior Court in New Haven County and reserved by that court, Shumway, J., upon a finding of facts, for the consideration and advice of this court.

Suit to foreclose a mechanic’s lien, brought to the Superior Court in New Haven County and tried to the court, Thayer, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Action of replevin to recover the possession of a liquor license, brought to the Court of Common Pleas in New Haven County and tried to the court, Studley, J., upon the defendant’s demurrer to the plaintiff’s reply; the court sustained the demurrer and rendered judgment for the defendant, and the plaintiff appealed for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Suit to restrain the municipal authorities of the city of Bridgeport from approving or confirming a certain contract entered into by its agents with the New York, New Haven and Hartford Railroad Company, concerning the elimination of grade crossings, brought to the Superior Court in Fairfield County and tried to the court, Prentice, J., upon demurrer to the complaint; the court sustained the demurrer and rendered judgment for the defendants, and the plaintiff appealed for…

Action upon an administrator’s bond to recover specific moneys claimed to have been owned by the plaintiff’s ward, brought to the town court of Norwalk and thence by the plaintiff’s appeal to the Court of Common Pleas for Fairfield County, and tried to the court, Curtis, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff for alleged errors in the rulings of the court.

Suit for ail injunction to restrain the defendant from obstructing a pass-way, brought to the Superior Court in New Haven County and tried to the court, Shumway, J. ; facts found and judgment rendered for the defendant, and appeal bj1- the plaintiff for alleged errors in the rulings of the court.

<p>A plea in abatement for defective service is not entitled to favor. Its allegations must be certain, positive, and direct, and cannot be aided by intendment or inference.</p> <p>In an action by an executor or administrator, under § 1008 of the General Statutes, for personal injuries resulting in death, the complaint will not he held insufficient if it omits to aver the existence of legal heirs, since the law ordinarily presumes their existence.</p> <p>The statutory notice of an injury required to be given to a defendant prior to suit, is not a pleading, and the plaintiff is not limited in his proof to the specifications of negligence contained therein.</p> <p>A city ordinance provided that no person should play in the streets so as to interfere with their free, safe and convenient use by travelers. Held that such an ordinance could not affect a child only twenty-one months old, nor lessen or modify the duty of a motorman of an electric car to exercise due care towards such a child alone in the street.</p> <p>The declaration of the mother of a child injured by an electric street railway company, made shortly after the accident, that she did not blame the motorman, is irrelevant in an action against the company for negligence in causing the death of such child.</p> <p>If irrelevant testimony is admitted in favor of one party and against the objection of the other, the former cannot complain if the latter is after-wards permitted to introduce like testimony in contradiction.</p>

<p>Section 2092 of the General Statutes authorizing the organization of a corporation in connection with any Roman Catholic church or congregation, provides that the two lay members of such corporation shall be appointed annually “ by the committee of the congregation.” Held that this method of appointment was mandatory, and that an election by the congregation of two individuals as lay members, gave them no title' to the office.</p>

<p>The welfare of the minor is the paramount consideration in habeas corpus proceedings to determine to whom its custody shall be awarded, even in a controversy between parents; a fortiori when the respective claimants are merely guardians appointed by courts of different States.</p> <p>The probate district in which the minor has his actual, stated dwelling-place, is one in which he “ resides ” within the meaning of that word as used in § 458 of the General Statutes, even if he may have a technical domicil in another State by reason of his father’s residence there.</p>

Action to recover for support furnished certain paupers, brought to the Court of Common Pleas of Hartford County and tried to the jury, before Calhoun, J.; verdict and judgment for the plaintiff against the town of Hartford only, and motion for a new trial by that defendant for a verdict against evidence. The action was originally brought against the towns of West Hartford and East Granby ; before trial Hartford also was made a defendant.

<p>A concerted sale and transfer of their shares by all the stockholders of a business corporation to a syndicate, with a view to the continuance of the same business at the same place, under a new form of incorporation, followed by a transfer of its plant and property including all manufactured goods on hand, by the old company to the new one, is not a sale of such goods, within the meaning of a contract between the old company and one of its superintendents, under which he was entitled to a commission on the profits realized on all sales of manufactured goods.</p> <p>A contractor with such a corporation, whose contract called for a renewal, or if a renewal were refused by it, then for a certain payment to him in lieu thereof, cannot claim that as such a transfer makes a renewal impossible, he is entitled to the sum stipulated in case of a refusal, when he, as a stockholder and director, has actively promoted the sale of shares and consequent transfer.</p> <p>As the new company represented the purchasers of the shares in the old company, the latter, after the reorganization (no complaint being made by the State), held its plant and property on an equitable trust for the former, subject only to the rights of creditors.</p> <p>The contract called for a commission on profits from the sales of manufactured goods in each year, to be computed in view of certain annual charges for taxes, insurance, counsel fees, power, etc., which varied from year to year. The transfer of the property was made after two months of a certain year had elapsed. Held that the contractor was entitled to his commission on the sales for those months, but could not sue for them before the close of the year. Nevertheless, he having brought before that time an equitable action for an accounting, and then filed amendments after the year had elapsed, stating a case which would have supported his action, if brought at the time when the amendments were filed, and the trial court having thereupon ordered an accounting,—held that, though such order was erroneous because based on an action prematurely brought, still it ought not to be reversed, because it did substantial justice. The same facts, if pleaded in a supplemental complaint, would have been a proper foundation for the judgment, and such a merely formal slip in pleading was no sufficient ground of error.</p> <p>An action at law can only be supported on the facts existing when it was first brought. Equitable proceedings rest upon different foundations, and in them the parties can always rely on new matter, if properly pleaded.</p>

<p>The provisions of the general election law with reference to the counting and rejection of double and marked ballots (Public Acts of 1895, Chap. 267, § 9), do not apply to ballots cast on the question of license. The provision in Chap. 308 of the Public Acts of 1895, p. 64S, that “ the license votes,” cast as prescribed by said Act, should be “ counted and returned as now provided by law,” does not refer to the general election law, but to the mode theretofore provided and followed for counting and returning license ballots.</p> <p>Unless a ballot comes clearly within the prohibition of some statute it should be counted, if from it the wish or will of the voter can be ascertained.</p>

<p>If the evidence in a civil action creates so strong a probability of the existence of a material fact as to induce a reasonable belief thereof in the mind of the trier, be should find the fact itself, rather than the probability of its existence.</p> <p>In the case at bar it was held that an unqualified statement in the finding that a certain thing was the probable cause of an accident, imported that it was in fact the cause.</p> <p>A statement of matters as to which no finding whatever is made, is irrelevant, unless such matters bear upon exceptions taken for want of such a finding.</p> <p>A mere defect in the plan adopted and followed by a municipality in the construction of a highway, is not a neglect to keep the highway “in repair,” within the meaning of §2673 of the General Statutes. Nor is the municipality liable, either at common law or by statute, for injuries to a traveler on its highway, occasioned solely by a defect in the plan upon which it was constructed; unless; indeed, the plan is so radically deficient as to leave the highway, immediately upon its completion, in need of repairs in order to make it safe for travel.</p> <p>The use of steps in a city or borough sidewalk is one of several permissible means of overcoming a steep grade. Whether this is the best means of constructing a particular sidewalk, is a question for the municipal authorities to decide; and their decision is not subject to review by the courts.</p> <p>A sidewalk constructed under the superintendence of the warden of a borough, and accepted, paid for and maintained by the borough for eight years or more, must ordinarily be regarded as authorized by the proper municipal authorities.</p> <p>The authority of a borough to determine how a sidewalk shall be built, is not abridged because it happens to own the laud upon which the walk is to be laid. Nor is a city, the municipal successor of the borough, in fault for allowing the sidewalk to remain, provided the city is free from negligence in respect to its repair.</p> <p>Whether one injured on the highway used due care or not, in view of all the attending circumstances, is a pure question of fact, upon which the finding of the trial court is conclusive.</p>

Action to recover the amount of a loss under a fire insurance policy, brought to the Court of Common Pleas in Hartford County where judgment was rendered for the plaintiff upon the defendant’s default, Walsh, J. Subsequently the defendant filed a motion to open the judgment and restore the cause to the docket, which the court denied, and thereupon the defendant appealed to this court.

Action to recover damages for the loss of ahorse and carriage through the negligence of the defendant, brought to the Superior Court in Middlesex 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.

Prosecution for the violation of a city ordinance relating to awnings, brought to the City Court of Middletown and thence by the defendant’s appeal to the Superior Court in Middlesex County, and tried to the jury before Thayer, J.; verdict and judgment of guilty, and appeal by the defendant for alleged errors in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Suit to restrain the defendant from diverting the water of Park river into an intercepting sewer, until compensation therefor should be made to the plaintiffs as riparian and mill proprietors; brought to the Superior Court in Hartford County and reserved by that court, Elmer, J!, upon demurrer of the defendant, for the consideration and advice of this court. Judgment sustaining demurrer advised. The case is sufficiently stated in opinion.

Action for an accounting and for damages, brought to the Superior Court in New London County and reserved by that court, Robinson, J., upon a finding of facts, for the consideration and advice of this court. The case is sufficiently stated in the opinion.

Action to recover a sum of money claimed to have been received by the defendant’s testator as statutory trustee of his wife, brought to the Superior Court in New London county and tried to the court, Thayer, J. ; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court. The complaint alleged the following facts: Charles E. Dyer and Sarah C. Buckingham intermarried at Norwich, September 2d, 1868.

Suit to determine the construction of the will of Jeremiah C. Geer of Groton, deceased, brought to the Superior Court in New London County and reserved by that court, Ralph Wheeler, J., upon the facts stated in the complaint, for the consideration and advice of this court. The material portions of the will were as follows :— “ First.

Suit to determine the validity and construction of the will of Hugh Crosgrove of Norwich, deceased, brought to the Superior Court in New London County and reserved by that court, Elmer, J., upon the facts stated in the complaint, for the consideration and advice of this court.

Milton A. Shumway, a judge of the Superior Court; facts found and judgment rendered in favor of the applicant, and appeal by the respondents for alleged errors in the rulings of the judge. In this court the appellee filed a motion to erase the appeal, on the ground that none could be taken in proceedings of this nature; but withdrew the motion when the ease was reached for argument.

Suit to compel the defendant to transfer a certain patent to the plaintiff, for an injunction and for $5,000 damages, brought to the Superior Court in New London County where a judgment by default was entered against the defendant; afterwards the plaintiff waived its claim for damages and the parties having been fully heard by the court, Slmmway, J!, judgment was rendered for the plaintiff, and the defendant appealed for alleged errors in the rulings of the court.

Action of replevin to recover the possession of a horse, brought before a justice of the peace and thence by the defendant’s appeal to the Court of Common Pleas for New London County and tried to the court, Noyes, 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 sufficiently stated in the opinion.

Action to recover damages for personal injuries claimed to have been caused by the negligence of the defendant, brought to the Superior Court in New London County and heard in damages to the court, Thayer, J. ; facts found and judgment rendered for the plaintiff for $1,500 damages, and appeal by the defendant for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Application to the Hon. Milton A. Shumway, a judge of the Superior Court, to determine the compensation to be paid to several riparian owners for the appropriation of their land and riparian rights to public use; facts found and an award of $8,000 made in favor of the respondent, and appeal by him for alleged errors in the rulings of the judge. The application was based upon votes of the plaintiff, under authority of Special Laws, Vol.

Action against husband and wife to recover for services rendered by an attorney at law, brought to the Court of Common Pleas in New London County and tried to the court, Noyes, J.; facts found and judgment rendered for the plaintiff as against the wife, and appeal by her for alleged errors in the rulings of the court. The husband filed no answer, and did not appear at the trial.

Action to recover the amount of a soldier’s bounty, brought to the Superior Court in New London County and tried to the court, Thayer, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court.

Action to recover damages for personal injuries claimed to have been caused by the negligence of the defendant, brought to the Superior Court in New Haven County and heard in damages to the court, Shumway, J., after a demurrer to the complaint had been overruled by Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff for nominal damages, and appeal by the defendant for alleged errors of the court in overruling the demurrer.

Action to recover a sum of money claimed to have been given to the plaintiffs and to have been converted by the defendant to his own use, brought to the Superior Court in New Haven County where the plaintiffs were nonsuited in a trial to the jury, before Thayer J.; the court denied the motion to set aside the nonsuit and the plaintiffs appealed.

Action of replevin to recover the possession of a stock of hoots and shoes, brought to the Superior Court in New Haven County and tried to the court, Thayer, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court.

Action to recover the aggregate amount of premiums paid by the plaintiff to the defendant under a claimed mistake of law and fact, brought to the Superior Court in New Haven County and tried to the jury before Thayer, J.; verdict and judgment for the defendant, and appeal by the plaintiff for alleged errors in the charge of the court.

Action for malicious prosecution, brought to the Superior Court in New Haven County and tried to the jury before Thayer, J.; verdict and judgment for the plaintiff for $900 damages, and appeal by the defendants for alleged errors in the rulings of the court. The defendants also moved for a new trial for a verdict against evidence. Motion for a new trial denied; error on the appeal and a new trial ordered.

Suit by certain minority stockholders of a joint stock manufacturing company, to compel the surrender and cancellation of a lease of its plant, broughtTto the Superior From the allegations of the complaint it appeared that the Derby Kubber Company was a joint stock corporation organized in 1889 under the laws of this State and located in the town of Huntington; that the purpose for which it was formed was to reclaim and work over old rubber and to manufacture and sell rubber…

Suit to foreclose a mortgage of real estate, brought to the Superior Court in Fairfield County and tried to the court, Greorge W. Wheeler, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court.

Action to recover damages for a claimed breach of contract to purchase certain wood and timber, brought to the Superior Court in New Haven 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 case is sufficiently stated in the opinion.

Action to recover damages for personal injuries claimed to have been caused by a defective highway, brought to the District Court of Waterbury and heard in damages to the court, Bradstreet, J.facts found and judgment rendered for the plaintiff for $500, and appeal by the defendant for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Shit to restrain the defendants from making a new layout of a city street, brought to the Superior Court in New Haven County and tried to the court, Robinson, J., upon the defendants’ demurrer to the complaint; the court sustained the demurrer and rendered judgment for the defendants, and the plaintiff appealed for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Action of replevin to recover possession of certain machinery, brought to the court of Common Pleas for Litchfield County and tried to the court, Arthur D. Warner, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court.

Appear from the action of the city authorities of Norwalk in refusing to approve the application and plan of the Nor-walk Street Railway Company for double tracking a portion of its line, taken to the Son. F. B. Sail, a judge of the Superior Court, by whom the cause was heard and judgment rendered for the railway company, and appeal by the city for alleged errors in the rulings of the judge.

<p>After prescribing how intestate estate should be distributed among the children, a statute (General Statutes, Rev. of 1875, p. 372, §6) provided that if the real estate could not be divided among all tlie children, without great inconvenience, it might be set to the eldest son, or, on his refusing, to the other sons, successively, he paying to the other children their proportional shares of its appraised value, or giving them security for such payment within the time limited by the Court of Probate. The next section (§ 7) provided that if any minor child should die before marriage, and before any legal disposition of the estate, the portion of such deceased child should be equally divided among the surviving children, and their legal representatives. Held that §7, which was originally a part of § 6, was to be construed in connection with such section and as supplementary to it; and that so construed it was not a statute of descent, constituting an exception to the general law as established in the preceding and following sections of the chapter, but was merely a law of administration regulating the disposition, under the contingency referred to in § 7, of money paid or payable for the land set to one of the sons.</p> <p>Accordingly where A died intestate leaving two minor children, each of whom died intestate and unmarried during minority, and before any disposition of A’s estate had been made, it was held that the property descended to the heirs of the minor child who last died, and not to the next of kin of A existing at his death.</p>

George W. Wheeler, a judge of the Superior Court; facts found and judgment rendered denying the application, but without prejudice to its renewal, and appeal by the applicant for alleged errors in rulings of the judge. In this court the appellee filed a motion to dismiss which was briefly argued, and the decision thereon reserved. The case is sufficiently stated in the opinion.

Action fco recover damages for personal injuries claimed to have been caused by the negligence of the defendant, brought to the Superior Court in Fairfield County and heard in damages to the court, Robinson, J.; facts found and judgment rendered for the plaintiff for nominal (|5) damages only, and appeal by the plaintiff for alleged errors in the rulings of the court.

Action to recover damages for personal injuries to the plaintiff’s intestate, claimed to have been caused by the defendants’ negligence, brought to the Superior Court in New Haven County and, after demurrer overruled, heard in damages to the court, Shumway, J.; facts found and judgment rendered for the plaintiff for $1,000, and appeal by the defendant for alleged errors in the rulings of the court. The ease is sufficiently stated in the opinion.

Action to recover damages for breach of promise of marriage, and-compensation for services rendered, brought to the Superior Court in Litchfield County and tried to the jury before Ralph Wheeler, J.; verdict and judgment for the plaintiff for |5,310, and appeal by the defendant for alleged errors in the rulings and charge of the court.

•Suit for an injunction to restrain the defendant from polluting a certain stream of water by sewage, and for damages, brought to the Superior Court in Hartford county, and, after several special defenses had been proforma adjudged insufficient upon demurrer (Robinson and Hall, Js.), tried to the jury before Hall, J.; verdict and judgment for the plaintiff for |2,000 damages, and appeal by the defendant for alleged errors of the court in sustaining tlie demurrers of the…

Leonard Daniels, deceased, taken to the Superior Court in Hartford County and tried to the court, Elmer, J.; facts found and judgment rendered in favor of the appellants, and appeal by the executors for alleged errors in the rulings of the court. The material facts as they appear in the record and the finding of the Superior Court, are as follows:— Leonard Daniels died in January, 1892, leaving an estate appraised at one and a quarter million dollars.

<p>A testator gave the residue of his estate to five trustees in joint tenancy, and provided that if their number should be reduced to two, “ the judge of probate” in the testator’s district should appoint a third, and in so doing should “ regard the wishes of the existing trustees, or the persons interested in the estate, so far as he believes he can with safety to the estate, but no further.” After the death of three trustees the two surviving expressed no wish as to the person who should fill the vacancy, and the beneficiaries could not agree upon a nomination, whereupon the Court of Probate appointed W, who had no connection with any of the testator’s family or relatives, and whose appointment was not requested by any of the beneficiaries. Upon an appeal from this appointment it was held: —</p> <p>1. That by “ judge of probate ” the testator meant to describe the Court of Probate for the district of his domicil, rather than the individual who, for the time being, might occupy that office.</p> <p>2. That if the attempted direction and control of the action of the Court of Probate was permissible under §491 of the General Statutes relating to the appointment of testamentary trustees, it amounted to no more than a grant of power to certain individuals in a matter of private confidence, which could be exercised only by their unanimous concurrence; and on the other hand, if the provision was to be regarded as an unauthorized attempt to confer jurisdiction upon a court and dictate its proceedings, it was void; and consequently, upon either assumption, the Court of Probate proceeded properly in filling the vacancy.</p> <p>The letters of a judge and his declarations out of court are mere hearsay, and incompetent to show the process of reasoning leading to a judgment.</p>

<p>The court has the power to direct a receiver as to what wages shall be paid in the management of property under its charge. But this power is one to be exercised only in clear cases of necessity, and with exceeding caution.</p> <p>Whether the hearing upon an intervening petition filed by employees asking a restoration of former wages, is an adversary proceeding in the legal sense, so that the petitioners are parties to the original receivership suit for the purpose of an adjudication, quwre. If they are parties, the order of the trial court granting or refusing their petition must be regarded as a final judgment, and, as such, subject to the right of appeal.</p> <p>Under the general rules of chancery practice, and the broad language of our statutes in respect to receivers (General Statutes, §§ 1322, 1942), a receiver may appeal from a void order, or from one claimed to be void, which affects the rights of owners and creditors represented by him.</p> <p>While'the court of the State in which the receiver of an interstate railway is first appointed is presumptively the proper tribunal to direct as to what wages shall be paid to employees whose services are rendered partly in each State, it nevertheless cannot be said, as matter of law, that an order of the court in the State where the receiver is subsequently appointed, relating solely to the wages of trainmen engaged in operating the road, the greater part of which is in the latter State, is beyond the jurisdiction of that court, merely because the trainmen performed a portion of their duties within the territory of the former State. Tiie interests of the property may require, and the nature of the proceedings in both courts justify, the direction of the latter court in sucli a matter; and if so, sucli court may properly rely upon such an application of the rule of comity by the court of initial proceeding, as will aid and not obstruct the full execution of the order.</p>

<p>The defendants were charged with conspiracy to cheat and defraud by means of false representations and devices. Held that the conspiracy might be established by proving the acts and declarations of each defendant in furtherance of the alleged common undertaking, although made in the absence of the other; but that evidence of the declarations of one defendant implicating his absent co-defendant, could not affect the latter, until the trial court should be of the opinion that a prima facie case of combination between the defendants had been made out.</p> <p>Proof of facts which conduce to show the conspiracy charged, will justify the trial court in admitting in evidence the acts and declarations of the several conspirators; it being the province of the jury to pass upon the adequacy of the evidence to establish the conspiracy.</p>