Volume 72 — Connecticut Reports

The plaintiff on December 15th, 1898, applied to county commissioners for a license to sell intoxicating liquors at 152 Washington street in the town of Norwalk. Sundry taxpayers remonstrated, because the place designated was not a suitable place to be so licensed. February 4th, 1899, the commissioners, refused to grant the license on the ground that the place was not suitable.

<p>Suit for an injunction to restrain tlie defendants from wharfing out so as. to obstruct navigation and impair the usefulness of the plaintiff’s pier, brought to the Superior Court in New London County and tried to the court, Bor aback, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants for alleged errors in the rulings and. findings of the court.</p> <p>The plaintiff owns a piece of upland on the Thames river or New London harbor, with a wharf extending therefrom within the lines of its riparian easement easterly towards the channel. The easterly end or front of the wharf is upon the channel; the southerly side of the wharf is upon the open water; the northerly side of the wharf is within about a foot of the wharfing easement, and is bounded for about seventy* eight feet from the upland by an adjoining wharf, the fee of which is owned by the city of New London, and bounded beyond that by the waters of a basin or dock. Northerly of the wharf of the city is a ferry slip used for the Groton ferry, under authority of the city of New London. The dock bounding the northerly side of the plaintiff’s wharf is formed by that wharf and the southerly fence of the ferry slip. The map on this page sufficiently illustrates the situation. A represents the plaintiff’s wharf; C and D the city wharf; B the dock bounded northerly by the ferry slip and southerly by the plaintiff’s wharf.</p> <p> </p> <p>A Wharf of plaintiff; B Dock formed by plaintiff’s wharf and ferry slip; C Wharf built by ferry company, under authority of city in 1892,- D Wharf built by city in 1894, and leased to defendants in 1898.</p> <p>The complaint alleges that the plaintiff uses its wharf for the mooring of vessels belonging to itself and others, in connection with its business as a common carrier of goods and passengers, and that the northerly side of the wharf bounded on said dock is of great value to the plaintiff in its business. Paragraph 5 of the complaint alleges that “ the defendants threatened to build and have begun to build, by driving piles and by covering the same with planks and timbers a permanent structure over and across said basin, in such a manner as to appropriate the same to their own private use, in connection with their private business as dealers in fish, and so as to obstruct the plaintiff in its use of said basin, and such other persons as may have occasion to reach the plaintiff’s said pier in vessels, and in such manner as to obstruct and prevent the access of such vessels to the northerly face of said pier and to deprive the plaintiff of its rights as an abutting owner upon such navigable waters.” Paragraph 6 alleges that such use of said basin will interfere with the business of the plaintiff at its said pier and reduce its value to the plaintiff as well as its market value. The prayer for relief is “ an injunction restraining the defendants from placing any piles, planks or timbers in said basin, and from filling in said basin in whole or in part, and from making any erection or structure therein, and from covering over said basin, and from in any way obstructing the use of the same for the purposes of navigation or so as to prevent the access of vessels to the northerly part of the land or pier of the plaintiff.”</p> <p>The material portion of the answer denies the allegations of paragraph 5, alleging, in connection with the denial, that “ the defendants before this action was begun were and still are in possession of the upland and shore and a wharf structure extending a little from said upland and shore at the place in question, and next north of the property described in the complaint as the plaintiff’s property, having and holding such possession under a claim of title thereto and ownership thereof, and in fact owning the same, together with the right to fill in and wharf out from said upland and shore, and all other rights, privileges and estates appertaining and belonging to the ownership and possession of said property; and the acts, matters and things complained of as threatened and intended by the defendants, are confined to said property and in extension of the existing wharf and in exercise of their right as such owners to fill in and wharf out from the shore and upland so owned and possessed by them towards, but not fully out to, the harbor and wharf lines already established and existing, and as occupied by the plaintiff.” The defendants also repeated the allegation of this possession of the upland with the right to wharf out, by way of a second defense.</p> <p>The plaintiff demurred to the second defense, because it involved an admission that the defendants intended to build a structure in the basin so as to appropriate it to their private use and to obstruct the plaintiff in its use of the basin and prevent the access of vessels to the northerly face of the plaintiff’s wharf. This demurrer was overruled, on the ground that the allegations, if sustained, would constitute a good defense.</p> <p>Upon the evidence the trial court found that “ there is a public highway leading to and connected with the place where the defendants intend to fill in and wharf out, and there has been and now is a public landing at this point; that the defendants have no such title and interest in and to the upland and shore as to give them the right to fill in and wharf out at this place. The issues are therefore found for the plaintiff.” Thereupon judgment was rendered for a permanent injunction in the very words of the injunction asked in the prayer for relief.</p> <p>The record, in pursuance of the statute, specially sets forth the facts on which this judgment is founded. These facts are substantially as follows:—</p> <p>The plaintiff corporation owns and operates a railroad in the city of New London, occupying with its passenger station and tracks the easterly portion of a piece of land extending westerly from Thames river, now known as State street or the Parade, and formerly known as the “ Fort Land,” and as “ Market Square.”</p> <p>■ The plaintiff also owns and has owned for more than thirty years the upland on Thames river and the wharf structure described in the complaint (indicated on the map as A) ; said structure is for the most part filled land, and consists in part of piling. It is used for mooring vessels, as a landing place for steamboats, and for receiving and discharging freight in connection with the plaintiff’s business as a common carrier.</p> <p>In 1892 a wharf was built under authority from the city of New London adjoining the plaintiff’s wharf on the north and extending easterly from the upland about thirty-eight feet (indicated on the map by C). In 1894 the city built another wharf, being an extension of the last mentioned wharf, about forty feet further easterly and adjoining the plaintiff’s wharf (indicated on the map by D).</p> <p>In 1898, and prior to the commencement of this action, the city of New London leased for a term of ten years, to the defendants, “ all the right, title and interest of the said city in and to a lot of land, with all its riparian, water and other rights pertaining thereto, lying and situated ” (describing the last mentioned wharf, indicated on the map by D), “ together with the right for the necessary piling, dredging, floats, stages, fish cars and other appliances necessary and usual for the purpose of maintaining a fish market upon said leased premises in as ample a manner as said city could do.” The lease contained the usual covenants, and the following: “It is mutually understood and agreed that the lessor is not to be liable for any repairs, alterations, changes or betterments; and that in case the lessee shall be evicted from the premises leased, by a judgment of any competent tribunal that the lessor has no right to lease the premises as aforesaid, this lease shall then become from the date of such judgment void and of no effect, and that neither party thereto shall be obligated by any of its provisions from and after the date of said judgment.”</p> <p>Three or four days after the execution of the lease this action was commenced, and subsequently the defendants took possession of the leased premises and placed a building thereon for use in their private business as a fish market.</p> <p>The defendants threaten to build a private wharf for use in their business as aforesaid, extending easterly from the wharf upon which said building is located and upon and at the foot of the public way (hereafter mentioned) into the above described basin situated next northerly to the plaintiff’s wharf, and by said wharf and building to fill in said basin in such a manner as to effectually obstruct, hinder and prevent the public from navigating said basin, and from landing at and upon the foot of said public way and the Parade.</p> <p>Said private wharf so threatened will, if constructed, prevent the plaintiff from using the north face of its wharf and prevent access by water to tbe northerly face of said wharf,1 and will materially diminish the value of the plaintiff’s said property by obstructing the access to one side thereof to and from the public navigable waters of said Thames river.</p> <p>The upland from which the wharf leased to the defendants extends, is part of a tract of land, of irregular form, lying upon the bank of the Thames river for about 360 feet and extending thence westerly; the northerly and southerly boundaries of this tract are about 315 feet, and the westerly boundary about 194 feet.</p> <p>This tract of land, known at different times as “ Fort Land,” “ Market Place,” “ State street,” “ the Parade,” at and from the settlement of New London was, and has been, reserved from particular and individual sale and allotment.</p> <p>Upon the easterly and water front of said Parade, the town, until the incorporation of the city of New London, and after-wards the city, has from time to time built and extended and changed wharf structures, and has established and changed the location of ferries from time to time and from place to place.</p> <p>The wharf structure so leased by the city to the defendants was one of such wharf structures, and was built and extended by the city at different dates.</p> <p>On August 13th, 1784, the court of common council of the city of New London passed the following vote: “ Voted: — To lay out as a highway the land lying within the following limits, namely:” (describing substantially the limits of the land now known as the Parade). The city was incorporated in 1784, holding its first city meeting in March. The mayor, aldermen and councilmen were authorized to lay out new highways, “ taking the same measures in all respects as are directed by the laws of this State to be taken in the case of highways laid out by the selectmen for the use of their towns.” The city limits extended across the Thames river, and the court of common council were empowered to make by-laws “ relative to their wharves.” This vote was the only action taken to lay out said highway.</p> <p>A number of business buildings have been erected, either by the city, or by private individuals under a lease of the ground to them from the city; and such ground and buildings have been leased to private individuals; and market business—both flesh and fish—has been carried on therein, beginning as early as 1785 and continuing until recent years ; and such buildings have been located at various times at various places on the said Parade. Hay scales were located thereon as early as 1785, and shops for various kinds of business, including a shoe shop in 1785, a hatter’s shop in 1785, a saddler’s shop in 1788, and an oyster house in 1824.</p> <p>From time to time the city appointed a clerk of the flesh and fish markets, and collected the rentals, and kept the oversight of the buildings and of the markets and other buildings, which they leased to private individuals.</p> <p>In 1850 the city granted to the New Haven and New London Railroad Company the right to construct their road upon and across the Parade, and to build a depot thereon. That depot was located at one place upon the Parade, and after-wards changed by agreement between the railroad and the city to another locality upon the Parade.</p> <p>In 1860 the New Haven, New London and Stonington Railroad Company was granted, by the city, the privilege of occupying part of the Parade for railroad and ferry purposes.</p> <p>In pursuance of an Act of the legislature for the establishment of a union depot at New London, and upon application of this plaintiff and the New London Northern Railroad Company, the whole eastern end of the Parade or State street was condemned and taken for railroad purposes by an order of the railroad commissioners passed July 7th, 1885. The southerly boundary of the land so condemned is the southerly boundary of the Parade or State street (as shown on the map), and the line of this southerly boundary extended is substantially the northerly boundary of the plaintiff’s said wharf and riparian right. The easterly boundary of the land so condemned is the sea wall (as shown on the map), which is substantially parallel with the original shore line, and is a retaining wall separating the waters of the Thames river from the upland as now constructed.</p> <p>The city appealed from this order, and pending the appeal the railroad companies and the city entered into an agreement, dated March 26th, 1886, by which the appeal was withdrawn and all matters in controversy between the parties were amicably settled, in accordance with the following stipulations to which all agreed: “ 1st. There shall forever be, across the southerly part of the land taken under the Act of 1885 on the foot of State street, a way for the public leading to the ferry, of at least forty-five feet in width. 2d. To avoid any possible questions that might hereafter arise, it is agreed that the railroad companies do not claim any riparian rights under said Act east of the east line of the land now taken by said companies as approved by the railroad commissioners. 3d. That they shall pay as damages for said taking under said Act to the city of New London $15,000 as soon as proceedings are withdrawn.”</p> <p>The wharf built by the ferry company under authority from the cit3r in 1892, and the wharf built by the city in 1891 (indicated by C and D on the map) were, up to the time of this suit, used exclusive^ as a means of access to and from the ferry and other vessels and the navigable waters of said Thames river, and as a standing or waiting room for passengers, horses and vehicles waiting for said ferry, and as a means of access to and from the wharf of the plaintiff, and as a standing and waiting room for passengers, horses and vehicles, in connection with the use of the plaintiff’s wharf, and the excursion and other vessels landing on the northerly side thereof.</p> <p>From the foregoing facts the trial court drew and found the following conclusions: 1. By the vote of the city council of August 13th, 1781, the land described in the vote was laid out as a public highway; and the “ way for the public leading to the ferry of at least 15 feet in width,” mentioned in the agreement of March 26th, 1886, forms a portion of the highway so laid out. 2. Said forty-five foot public way abutted and terminated upon the navigable waters of Thames river. 3. The construction of the wharf authorized by the city in 1892 extended said public way into the waters of the Thames; and the construction of the wharf built by the city in 1894 further extended said public way into the waters of the Thames. 4. Said wharf structures were dedicated to the public for the uses of a highway and public landing place, and were accepted by the public as such. 5. The wharf claimed by the defendants under their lease, on which they have placed their said building, is a public highway terminating in a public landing place, and the place where the defendants threaten and intend to build their said wharf is at the termination of said public highway which abuts upon the navigable waters of the Thames river.</p> <p>The court held that these facts and conclusions entitled the plaintiff to an injunction against any extension of the existing wharf now occupied by the defendants. ■</p> <p>The appeal contains thirty-five assignments of error, of which the first two are these: “ 1. The court erred in ruling and deciding that the plaintiff was entitled to an injunction, and in decreeing and rendering judgment that an injunction should issue on behalf of the plaintiff to prevent the defendants from extending the wharf in question easterly and further towards the channel of New London harbor. 2. The court erred in ruling and deciding that, under the facts and circumstances detailed in the finding, the plaintiff was entitled to an injunction against the defendants to prevent defendants from further extending the wharf structure in question.”</p> <p>Specification of the other assignments of error is unnecessary.</p>

Action for damages for the destruction of two ice-houses by fire claimed to have been communicated by a locomotive of the defendant, brought to the Superior Court in Middlesex County and heard in damages to the court, Slmmway, J. ; facts found and judgment rendered for the plaintiff for nominal damages only, and appeal by him for alleged errors in the rulings and findings of the court.

Suit to determine the construction of the will of Jonathan C. Upham, late of Union, deceased, brought to the Superior Court in Tolland County and tried to the court, Ralph Wheeler, J., upon the facts stated in the complaint and answers. The court rendered judgment sustaining in the main the claims of the Congregational Ecclesiastical Society of Union, and Arthur H. Upham, another legatee and devisee, appealed for alleged errors in the rulings of the court.

John M. Thayer, 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. The plaintiff is a street railway company authorized to operate an electric railway in certain highways in the town of New Britain.

Action to recover damages for personal injuries claimed to have been caused by the negligence of the defendant’s servant, brought to the City Court of Hartford and tried to the court, Morse, 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.

Prosecution for rape, brought to the City Court of New Haven and thence by a binding-over to the Superior Court in New Haven County and tried to the jury before Ralph Wheeler, J.; verdict and judgment of guilty, and appeal by the accused for alleged errors in the charge of the court.

Action of debt on judgment against the principal defendant, with, a second count hi the nature of a creditors’ bill for the purpose of reaching and appropriating his interest in a trust estate, brought to the Superior Court in Fairfield County and tried to the court, Elmer, Ji, upon a demurrer to the complaint and prayers for relief, filed by the defendant trustees only; the court sustained the demurrer and adjudged the complaint insufficient, and the plaintiff appealed for…

Action for libel, brought to the Superior Court iu New Haven County and tried to the court, Prentice, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings and findings of the court. The court found the following facts : 1.

Application by the town of Milford, in a receivership suit, for the allowance of certain taxes alleged to be due from the defendant corporation as a preferred claim, brought to the Superior Court in New Haven County and reserved by that court, Robinson, J., upon a finding of facts, for the consideration and advice of this court.

<p>Whether or not a plaintiff exercised ordinary care in a given case is usually determined by the trier as a matter of inference from established facts, rather than from direct evidence; but the facts from which the inference is drawn must be relevant to the question of contributory negligence.</p> <p>When the question of contributory negligence is merely whether the plaintiff’s conduct was prudent under the circumstances of the particular case, and no error of law is apparent upon the record, the conclusion of the trial court as to such negligence is final.</p> <p>The facts in the present case reviewed, and held to be sufficient to enable the trial court to draw a reasonable inference upon the question of the plaintiff’s negligence.</p>

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, brought to the Superior Court in Hartford County and heard in damages to the court, Thayer, J., after the defendant’s default; facts found and judgment rendered for the plaintiff for $800, and appeal by the defendant for alleged errors in the rulings and findings of the court.

Actios for an injunction and an order in tlie nature of interpleader, brought to the Superior Court in New Haven County and tried to the court, Prentice, J., upon a demurrer to the amended complaint, filed by all the defendants except Timothy H. Porter; the court sustained the demurrer and rendered judgment for the defendants other than said Porter, and the plaintiff appealed for alleged errors in the rulings of the court.

Action to recover damages for fraud in the exchange of real estate, brought to the Court of Common Pleas in Fair-field County and tried to the court, Carroll, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs for alleged errors in the rulings and findings of the court. The case is sufficiently stated in the opinion.

<p>Section 9 of the election law (Public Acts of 1897, Chap. 213) provides that no ballot shall be counted which contains any mark or device whereby it may be identified so as to indicate who might have cast it; and §12 prescribes that all ballots cast in violation of the provisions of the Act shall be void, but that any voter may alter or change his ballot by erasing any name or names therefrom, or by inserting in place of any name or names thereon, in writing or by a paster, the name of any person other than the candidate named. Held that the alteration of a ballot by erasing the name on a paster and restoring the name originally printed on the ballot, either by writing or by a superimposed paster, did not violate any express or implied prohibition of § 12, and did not render the ballot void under §9, as containing a distinguishing mark, unless it appeared that the change was made for a corrupt purpose.</p> <p>Marks upon the face of ballots which appear or are shown to have been made accidentally and not for the purpose of indicating the voter, and changes for the existence of which a reasonable explanation consistent with honesty and good faith either appears upon the face of the ballot or is shown by proof, do not render the ballots void under § 9 of the Act.</p> <p>Where there is no ambiguity upon the face of the ballots actually cast for one residing in the voting district who is eligible to the designated office, extrinsic evidence is inadmissible to show that they were intended to be cast for another person.</p>

Petition by the accused for a new trial upon an indictment for murder in the first degree, brought to the same term of the Superior Court in Fairfield County at which he was convicted and sentenced, and reserved by that court, Creorge W. Wheeler, J., upon a finding of facts, for the consideration and advice of this court.

Action by the receiver of a corporation to recover certain sums claimed to have been illegally paid to a stockholder by way of dividends, brought, to the Court of Common Pleas in Fairfield County and reserved by that court, Curtis, J., upon a finding of facte, for the consideration and advice of this court.

Action to recover for services and disbursements as manager of the defendant company, brought to the Superior Court in Tolland County and tried to the jury, before Ralph Wheeler, J.; verdict and judgment for the plaintiff for $1,321, and appeal by the defendant for alleged errors in the rulings and charge of the court and in its denial of the defendant’s motion for a new trial for a verdict against evidence. The complaint contained the common counts only.

Action in the nature of trespass qu. él. fr. for damages and for an injunction, brought to the Superior Court in New London County and tried to the jury before Thayer, J.; verdict and judgment for the plaintiff for $1 damages, and appeal by the defendants for alleged errors in the rulings and charge of the court.

Appeals from orders and decrees of the Court of Probate for the district of North Stonington denying petitions for dower, taken to the Superior Court in New London County and reserved by that court, Thayer, J., upon a finding of facts, for the consideration and advice of this court. These cases were argued as one. Each appellant claimed dower upon the following state of facts,: — Lucius D. Brown, the decedent, had his domicil in North Stonington, New London county.

Suit hy a married woman to compel her husband, who had deserted her, to provide her and their minor child with suitable support, brought to the Superior Court in New London County and tried to the- court, Robinson, -X, upon the defendant’s demurrer to the substituted complaint; the court sustained the demurrerand rendered judgment for the defendant, and the plaintiff appealed for alleged errors in the rulings of the court.

<p>Action to recover damages for the negligence of the defendant’s testator, an attorney at law, whereby the plaintiff was prevented from collecting the amount of a promissory note for SI,500, 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 and findings of the court.</p> <p>The defendant is the executor of Charles Perrin, late of Stonington, who in his lifetime was an attorney at law practicing in the village of Westerly. The plaintiff claimed that he was the holder and owner of a certain note for the sum of 11,484.14, dated April 29th, 1891, made by G. C. Bailey, payable to the order of Maria E. Ripley one year from date, and indorsed by the said Ripley; that the said Charles Perrin, whom he had consulted as such attorney, having the said note in his hands after it had been signed and indorsed as aforesaid, altered it by writing in the words “ with interest,” after the words denoting the amount of the note, without the knowledge or consent of the said maker or the said indorser, whereby the said note was made invalid and the sum therein named was lost to him, the plaintiff, and that by reason of the facts the plaintiff was entitled to recover of the estate of the said Charles Perrin the amount of said note with the interest thereon.</p> <p>The defendant insisted that whatever the said Charles Perrin did in respect to the said note was done by him “ with the knowledge, at the request, and with the approval of the plaintiff, and upon the representation to him by the plaintiff that it was understood he should do the same, and subsequently with a full knowledge of all the facts the plaintiff approved and confirmed, in the lifetime of the said Perrin, all that said Perrin had done ” in and about said note.</p> <p>The finding of facts, so far as it is necessary to recite it, is tins: —</p> <p>“ 8. In July, 1889, the plaintiff purchased of one Bailey, a tract of land in Texas, and shortly before April 29th, 1891, he agreed to reconvey the land to Bailey for the amount which he had paid Bailey therefor, with interest from the date of such payment, and to take said Bailey’s note for the amount to be paid, indorsed by one Maria E. Ripley of Stonington and payable one year from date at the Washington National Bank of Westerly. 5. On the 29th day of April, 1891, he went to the office of said Perrin and requested him to draw a deed of conveyance of said land from him, the plaintiff, to said Bailey. Said Perrin prepared the deed and the same was duly executed by the plaintiff at the office of said Perrin. 6. At the same time the plaintiff requested Perrin to prepare a note, leaving the amount to be paid blank to be.filled in by the parties whenever it should be signed, but in other respects ready for signature by said Bailey and indorsement by said Ripley, payable to the order of Maria E. Ripley one year from its date at the Washington National Bank of Westerly. 7. Said Perrin prepared such a note and the plaintiff took the same and said deed and left the office, Perrin saying to him as he left, ‘ When you have straightened up with Bailey come in and see me.’ 8. The plaintiff went immediately to Bailey, where the amount to be inserted in said note was computed and the amount, $1,484.14, was inserted in the note by the plaintiff who then gave the note to said Bailey that he might sign the same and obtain the indorsement of Mrs. Ripley and have the same ready for delivery upon the delivery of the deed at a subsequent day. 9. By mistake interest was computed by the plaintiff and Bailey to the date of the note instead of the day of payment thereof. This mistake was discovered by Bailey before the delivery of the note by him to the-plaintiff, hereafter mentioned. When it was discovered by the plaintiff did not appear in evidence, but it did appear .that he discovered it prior to a transaction between him and Perrin -hereafter stated in paragraph 11. 10. Within a few days after the plaintiff left said note with Bailey, they met and the plaintiff delivered to Bailey the deed aforesaid and Bailey delivered to him the note properly signed by himself (Bailey) and indorsed by Mrs. Ripley in blank. 11. Shortly afterwards the plaintiff called upon Mr. Perrin at his office and handed him the note and told him that there was a mistake about it; that it was agreed that it should be with interest, and wanted him to change it. Perrin, who was busy at the time writing at Ms desk, took the note _and inserted the words ‘ with interest,’ and handed it back to the plaintiff saying to him in reply to the question whether it was all right, ‘ Yes, that is all right.’ 12. This change was made without the knowledge or consent of either the maker or indorser of said note, but said Perrin did not know that fact and understood they had agreed to the change.”</p> <p>The court found the issues for the defendant and for the defendant to recover costs. The plaintiff appealed to this court.</p>

Wheeler, J., upon demurrer to the statement of claim filed by the claimant; the court sustained the demurrer and, after the motion of the claimant for leave to file a substituted statement of her claim had been denied (Elmer, J, rendered judgment for the respondents, from which the claimant appealed for alleged errors in the rulings of the court.

Actions to recover damages for fraud, brought to the Superior Court in Fairfield County and tried together to the court, George W. Wheeler, J.; facts found and judgment rendered in each case for the plaintiff, and appeal by the defendants for alleged errors in the rulings and findings of, the court.

^Action to recover the amount of a bond given by the defendant, brought to the Court of Common Pleas in Fair-field County and tried to the court, Ourtis, 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.

Action to recover damages for closing a farm crossing over the road-bed and tracks of the defendant, brought to the Superior Court in Fairfield 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 and findings of the court.

Suit to reform a deed and for an injunction, brought to the Superior Court in New Haven County and tried to the court, Rorabach, J., upon the plaintiffs demurrer to the answer of res judicata; the conrt overruled the demurrer, sustained the answer and rendered judgment for the defendant, and the plaintiff appealed for alleged errors in the rulings of the court.

Action by tlie indorsee against tbe maker of a promissory note to recover the amount thereof, brought to the District Court of Waterbury and tried to the court, Coivell, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings and findings of the court. The defendant was the maker of the note in question. The payee was one Louis Spiro, who indorsed the note to his brother, the plaintiff, before its maturity.

Action to recover damages for personal injuries resulting in tlie death of the plaintiff’s intestate, brought to the Superior . Court hi New Haven County and heard in damages by the court, Prentice, 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.

Action to recover damages for the breach of a contract of separation made between husband and wife, brought to the Superior Court in New Haven County and tried to the court, Prentice, J., upon the defendant’s demurrer to the amended complaint; the court sustained the demurrer, held the complaint insufficient, and rendered judgment (Robinson, J.) for the defendant, from which the plaintiff appealed for alleged errors in the rulings of the court.

Shit for an injunction to restrain the defendant front digging trenches and erecting fences across Hazel and Ivy streets in New Haven, brought to the Superior Court in New Haven County and tried to the court, RoraiaeJc, J.; facts found and judgment rendered for the plaintiff as to Ivy street and for the defendant as to Hazel street, and appeal by each party for alleged errors in the rulings and findings of the court.

<p>In order to secure the release of an attachment placed by the plaintiff upon the property of a third person, the defendant signed a guaranty to pay any judgment that might be recovered in the attachment suit, and delivered the writing to the attaching officer under an oral agreement that it was to be returned to the signer if a satisfactory bond or receipt for the attached property was given within a certain time, or if, upon expiration of the specified time, the property itself remained in statu quo and open to re-attachment. The property did remain in statu quo and subject to re-attachment long after the specified time. In an action upon the guaranty it was held that evidence tending to establish the oral agreement, which the defendant pleaded and relied upon in defense, was properly admitted by the trial court, and that proof thereof justified the legal conclusion that the written instrument was delivered only in escrow and had never become a present, operative and binding contract.</p>

Action by a deputy-sheriff to recover the amount of a judgment against him for a wrongful attachment directed by the defendant, 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.

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, brought to the Superior Court in Hew Haven County and tried to the jury before Shumway, J.; verdict and judgmentfor the plaintiff for $ 1,000 damages, and appeal by the defendant for alleged errors in the rulings of the court. The plaintiff is administratrix on the estate of Archie Cunningham, deceased.

Suit to determine the construction of the will of Matthias Cunningham of Hartford, deceased, brought to the Superior Court in Hartford County and reserved by that court, Thayer, J., upon a finding of facts, for the consideration and advice of this court.

Action originally upon the common connts, brought to the Court of Common Pleas in New Haven County where two substituted complaints filed by the plaintiff were successively stricken out by the court, first by Studley, J., and later by Hubbard, Jupon motion of the defendant; subsequently the plaintiff was nonsuited by the court, Hubbard, J., for failure to file a bill of particulars or proper substitute complaint, from which judgment he appealed for alleged errors in the…

Complaint in equity praying that certain judgments against tlie plaintiff might be set aside and a new trial granted, and asking for other equitable relief, brought to the Superior Court in Fairfield County and tried to the court upon the defendant’s demurrer to the complaint; the court, Robinson, J., sustained the demurrer and afterwards judgment was rendered for the defendant, from which the plaintiff appealed for alleged errors in the rulings of the court upon the…

Action to recover damages for an alleged taking of the plaintiff’s land in effecting the removal of a grade crossing, brought to the Superior Court in New Haven County and reserved by that court, Prentice, J., upon a demurrer to the amended and supplemental complaint, for the consideration and advice of this court.

Appeals from an assessment of benefits and damages resulting from a change of grade in a highway of the defendant city, taken to the Superior Court in New Haven County and referred to a committee by whom the facts were found and reported; the court, Robinson, J., overruled pro forma remonstrances filed by the defendants against the acceptance of the report, and reserved all questions of law arising upon the record for the consideration and advice of this court.

<p>Appeal from an assessment of benefits and damages resulting from a change of grade in Chapel street in the defendant city and the construction of a new bridge over Mill River, taken to the Superior Court in New Haven County and referred to a committee by whom’ the facts were found and reported; the court, Robinson, J., overruled pro forma a remonstrance filed by the defendant, accepted the report of the committee, and reserved the questions of law arising upon the record for the consideration and advice of this court.</p> <p>The report of the bureau of compensation, from which the appeal in this case was taken, is the same as that from which the appeals in the two preceding cases were taken (ante, p. 276), but refers to land situated on a different part of the same street. The case was tried to a committee whose report sets forth the facts as follows : —</p> <p>“ The circumstances under which this action is brought are as follows. The city of New Haven raised the grade of the highway known as Chapel street, between East street and Mill river, beginning at the easterly curb line of East street at the old grade, thence easterly about 200 feet, rising to the crown of a new bridge over the freight tracks of the New York, New Haven & Hartford Railroad Company, where the present grade is sixteen feet higher than the former grade ; thence gradually falling to a point 800 feet east of the east line of East street, where the present grade is five feet seven inches above the former grade; thence about on a level and about the same height above the former grade, to a new drawbridge over Mill river. In constructing said bridge and approaches and in changing said grade, the city erected on each side of Chapel street perpendicular stone retaining walls in front of the premises of the plaintiff, which walls are five inches higher than the present grade of the street above given; said walls vary, except for a short distance next adjoining East street, from 6 to 16 feet high, and are surmounted on each side of the street by an open iron railing about four feet high. Between said walls Chapel street is filled in solid across its full width to the new grade above given. The frontage ... of the New Haven Saw Mill Company thus affected is 1,084 feet.</p> <p>“ Said change of grade is attributable to two distinct public improvements: the abolition 'of a grade-crossing of the freight tracks of the New York, New Haven & Hartford Railroad Company over Chapel street, and the erection of a new drawbridge, taking the place of the old one, over Mill river.</p> <p>“ The original plans and specifications for the abolition of said grade-crossing contemplated that the new grade of Chapel street should run out into the former grade at a point 800 feet east of the east line of East street, hereafter called the 800-foot point; but subsequently the city of New Haven, for the purpose of providing a level approach to the new Mill river bridge, ordered an additional raise in the grade of Chapel street, extending back to a point 500 feet east of the east line of East street. Between said 500-foot point and said 800-foot point the total change of grade of Chapel street is therefore due to the Mill river bridge grade being superimposed upon the grade due to the abolition of said grade-crossing. . . .</p> <p>“ Said grade-crossing was abolished in consequence of an order of the railroad commissioners, dated July 6th, 1886, of which a copy is in evidence, . . . and in consequence of the following additional proceedings. Said order was appealed from by the New Haven Steam Saw Mill Company, and was amended and confirmed by a judgment of the Superior Court, dated November 18th, 1887, of which a certified copy is in evidence. . . . Said order was again amended by the railroad commissioners December 23d, 1887, and a copy of said amended order is in evidence. ... On November 6 th, 1896, a writ of peremptory mandamus was issued from the Superior Court, commanding the city of New Haven and said railroad company to obey said order and judgment. . . .</p> <p>“ The Mill river bridge improvement was constructed in pursuance of certain votes of the court of common council of the city of New Haven, copies of which are in evidence. . . .</p> <p>“ The court of common council of the city of New Haven assessed damages and benefits as equal to the plaintiff’s property on account of each of said improvements.</p> <p>“ George B. Martin is receiver of the New Haven Steam Saw Mill Company, and as such appeals from the order of the court of common council assessing damages and benefits equal on account of said Mill river bridge grade.</p> <p>“ I find that said New Haven Steam Saw Mill Company, and George B. Martin as receiver thereof are the owners of the premises described in the complaint. . . .</p> <p>“ Taking first that part of the premises lying east of the 800-foot point, and in front of which the change of grade already described is entirely attributable to the Mill river bridge improvement, I find that said premises consist of a tract of flats lying between high and low water-mark, 334 feet on Chapel street, and, excepting the easterly 50 feet, some 270 feet deep on the average. ...</p> <p>“ In changing the grade of Chapel street the city of New Haven took and appropriated for the purpose of said Mill river bridge improvement a strip of the plaintiff’s premises about four inches in width along the entire length of 334 feet.</p> <p>“ Plaintiff claimed damages for encroachment and for injury to the value of the premises.</p> <p>“ I find that the plaintiff was damaged by the encroachment above described in the sum of $33.40.</p> <p>“ I find that prior to the change of grade the market value of the above described premises was $45 a foot on Chapel street.</p> <p>“ The retaining wall in front of said premises is about six feet higher than the former grade of Chapel street, and materially obstructs the use of the water privilege in connection with Chapel street, and increases the cost of improving the flats.</p> <p>“ I find that the premises lying between the 800-foot point and the harbor line have been specially damaged by the Mill river bridge change of grade, over and above all benefits, at the rate of $15 a foot, or $5,010, not including damage for encroachment already found. . . .</p> <p>“ If the court shall find, upon the true construction of the said order appealed from, that the damages to be recovered in this action include only the damage to the premises lying between the 800-foot point and the harbor line, then I find and report that the plaintiff’s premises have been specially damaged by said change of grade in the sum of $5,043.40, over and above all benefits.”</p> <p>There was a remonstrance against the report and a reply thereto. The case was then reserved for the advice of this court.</p>

Shit for an injunction to restrain the defendant from diverting the waters of Pine river in Wallingford, brought to the Superior Court in New Haven County and tried to the court, Rorabaolc, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings and findings of the court.

; verdict and judgment sustaining the will, and appeal by the contestant for alleged errors in the rulings and charge of the court. There was evidence to show that the testatrix died in 1898 at {lie age of 79 years, leaving an estate of about $14,500. She had never married, and her nearest surviving relatives were cousins.

The first of the above-named eases —Chase et al., Administrators, v. Benedict et al. — was an action in the nature of interpleader to determine the title of the defendants to a trust fund, and was brought to the Superior Court in New Haven County and tried to the court, Shumway, J.; facts found and judgment rendered for the defendant Charles C. Read, executor of the will of George H. Benedict, deceased, and appeal by tbe other defendants for alleged errors in the rulings of…

Action in the nature of an appeal from the doings of the hoard of relief of the town of Yernon, brought by writ and complaint to the Superior Court in Tolland County and tried to the court, Shumway, Ji, upon a plea in abatement; the court sustained the plea and dismissed the complaint, and the plaintiff appealed for alleged errors in the rulings of the court.

<p>In order to justify acts done under a search-warrant it must have been returned to court; otherwise the acts become a trespass ab initio.</p> <p>In an action for libel the defendant, under a general denial, may avail himself of the fact that the article complained of was a privileged communication.</p> <p>To show that he had reasonable cause for making the complaint against the plaintiff upon which the search-warrant was issued, the defendant testified that he had been informed by P that he, P, was in company with the plaintiff when the latter stole the defendant’s property. He offered, also, to show that other persons had lost certain articles, and that P had told them that he, P, was with the plaintiff when the latter stole such articles. Held that this evidence raised collateral issues and was properly rejected.</p> <p>H, a witness for the plaintiff, testified that he asked P why he, P, had made such statements about the plaintiff to the defendant, and that P replied that he had made them because the defendant had offered him $10. Held that this testimony was inadmissible, especially in the absence of any evidence tending to show that the defendant knew of P’s motive in making such statements.</p>

<p>Section 475 of tlie General Statutes provides for tbe appointment of a conservator for any property owner wbo shall be found to be “ incapable of managing his affairs.” Held that the ability to do odd jobs of common work, handle small sums of money, and to purchase simple wearing apparel and provisions, was not necessarily and as matter of law inconsistent with a finding that such person was incapable of managing his affairs.</p> <p>Such a finding is decisive upon an appeal to this court, unless the record discloses some error in law upon the part of the trial court in reaching that conclusion.</p>

Suit to foreclose a mortgage, brought to the Superior Court in Hartford County and tried to the court, Thayer, J.; facts found and judgment rendered for the plaintiff as to a part only of the mortgaged premises, and appeal by it for alleged errors in the rulings of the court.

<p>A city is liable for an injury to property from the setting back of sewage during a severe but not extraordinary storm, when such overflow was due to its negligent omission to remove certain temporary obstructions placed in the sewer during its construction or alteration.</p> <p>Even if the duty as to the construction or alteration of the sewer in question was governmental, the duty of the defendant thereafter, to remove temporary appliances which if left in the sewer would render it unserviceable or inadequate, was a new and ministerial one.</p> <p>A municipal corporation is a person in law, capable of inflicting injuries, and liable to suit by him who suffers them, unless they flow from or are incident to the performance of a governmental duty.</p> <p>A city cannot avoid a judgment for a common-law liability, by pleading that it has no money on hand out of which the judgment can be paid.</p>

Actios to recover the amount of a book subscription, brought originally before a justice of the peace and thence by the defendant’s appeal to the Court of Common Pleas in Hartford County and tried to the court, Peck, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs for alleged errors in the rulings and findings of the court.

Action to recover damages for personal injuries claimed to have been caused hy the defendant’s negligence, brought to the Superior Court in Hartford County and tried to the court, Prentice, J.; facts found and judgment rendered for the plaintiff for 1600, and appeal by the defendant for alleged errors in the rulings and findings of the court. The material facts found are in substance the following: The defendant operates a street railroad in Hartford.

Applications in the nature of appeals from the doings of the board of relief of the city and town of Hartford, taken to the Superior Court in Hartford County- and tried to the court, Thayer, J.; facts found and judgment rendered in favor of the town and city in each case, and appeal by the tax-payers for alleged errors in the rulings of the court.

Application in the nature of an appeal from the doings of the board of relief of the city and town of Hartford, taken to the Superior Court in Hartford County and tried to the court, Thayer, J.; facts found and judgment rendered in favor of the city and town, and appeal by the tax-payers for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

<p>Suit for an injunction and for an order of interpleader in respect to the title to a balance due upon a building contract, brought to the Court of Common Pleas in Hartford County and tried to the court, Case, J., upon the issues raised by the claims of the respective defendants; facts found and judgment rendered awarding the fund, less the plaintiff’s expenses of suit and counsel fees, to the defendant Conti, and appeal by the defendant Aspromonte for alleged errors in the rulings of the court.</p> <p>The finding stated the following facts: On August 31st, 1897, the defendant Lettieri signed a contract with the plaintiff to build a brick block for him. The work was begun September 6th and duly finished December 20th, 1897. On the date of the contract, and before work was begun, Lettieri made an oral agreement with the defendant Aspromonte, a mason, which was afterwards put in writing and signed by them on October 18th, as follows : —</p> <p>“ I, John Lettieri, agree to take Leonardo Aspromonte as my partner in a contract that I have taken from Rocco Lapenta to construct a six-tenement building at No. 12 North street. And it is understood that said Aspromonte shall stand with his share of losses as well as gains.</p> <p>“ And it is furthermore understood that said Aspromonte is to have charge of all mason and plastering work, while John Lettieri takes charge of all carpenter finish work and odd jobs.</p> <p>“ And John Lettieri shall not receive nor dispense money without the presence of said Aspromonte.</p> <p>“ John Lettieri,</p> <p>“ Leonardo Aspromonte.</p> <p>“Rocco Lapenta, “Prospero Defona,</p> <p>Witnesses.</p> <p>The plaintiff witnessed the signing of this agreement, but was no party to it, nor was his assent or agreement to it for any purpose ever asked or given.</p> <p>Aspromonte commenced work on said buildings with Lettieri on the 6th day of September, 1897, and continued until the 20th day of December, 1897. During this period the plaintiff made certain payments under his contract with Lettieri, and receipts therefor were given to the plaintiff signed by Lettieri and also by Aspromonte. During all this period Aspromonte failed to fulfill the terms of his agreement with Lettieri, in that, although repeatedly urged by Lettieri to meet and contribute his, Aspromonte’s, share of the expenses which fell to the contractor under said original contract with the plaintiff, he refused or was unable to do so, and never in fact did so.</p> <p>Lettieri informed Aspromonte that unless he, Aspromonte, contributed, when the same was called for and became necessary, an equal amount with Lettieri to said expenses, he, Lettieri, would consider their agreement at an end, and would rescind it, and would pay Aspromonte the reasonable value of his services for such time as Aspromonte was actually at work on said buildings.</p> <p>Aspromonte’s employment upon said buildings was as a head mason, or foreman of the masons and plasterers there at work. The only advances of money which he claims to have made on account of said work are payments upon the wages of masons and plasterers under his immediate employ and control, amounting to about $136. This sum was so paid by him for the services named, but it comprised only a part of the wages actually earned by and paid to the masons and plasterers so employed.</p> <p>Near the time when work on said buildings was completed, it became necessary for Lettieri to raise a considerable sum of money, about $600, for claims against him and for materials incidental to the work in hand. He demanded of Aspromonte the sum of $300, as Aspromonte’s share of said sum to be raised, but Aspromonte again declined or was unable to contribute any part of the necessary sum, whereupon Lettieri, having first notified Aspromonte of his intention and given him an opportunity to make good his agreement, abandoned and rescinded the agreement previously made between them.</p> <p>On December 23d, there then being nearly $1,000 due on the building contract, Lettieri duly filed a certificate of lien. Said amount is still due and payable. A. month later Aspromonte, without authority from Lettieri, signed and filed another certificate* of lien in the name of both of them as partners. Aspromonte had never notified the plaintiff that he intended to claim a lien.</p> <p>There remains due and unpaid to Aspromonte a considerable sum for labor performed on said buildings between the dates already named, and for the expense incurred by him as already stated.</p> <p>After, and largely because of, Aspromonte’s refusal to perform the terms of his agreement with Lettieri, it became necessary for Lettieri to meet his obligations arising from said work, and he secured and used for that purpose the sum of $600 from the defendant Angelo Conti. In consideration therefor Lettieri in March, 1898, assigned to said Conti all his rights under the contract with the plaintiff to the amount of $600, and in May, in consideration of the assumption by said Conti of the payment of an outstanding bill against Lettieri for materials used in the construction of said buildings, amounting to about $160, and in further consideration of certain groceries furnished to Lettieri from the store of said Conti, of small amount and value not precisely determinable from the evidence, made a further assignment to Conti of all his remaining rights under said contract.</p> <p>All these transactions between Lettieri and Conti were in good faith and without fraud; the assignments were made for a good and valuable consideration; and the plaintiff was duly and promptly notified of said assignments by Conti. As a part of these transactions between Lettieri and Conti, the former duly assigned to the latter, by an instrument in writing, his lien on said property and all his rights thereunder, which paper was duly recorded in the Hartford land records, in March, 1898.</p> <p>Subsequently Conti brought an action in the City Court of Hartford against the plaintiff, to enforce the payment of the money claimed to be due him under Lettieri’s contract with the plaintiff, and by virtue of said assignments; which action is still pending.</p> <p>Upon these facts the defendant Aspromonte made these claims: (1) that there was a partnership between the defendant Lettieri and the defendant Aspromonte; (2) that the assignment by the defendant Lettieri to the defendant Conti, of the firm’s assets, was invalid as affecting the defendant •Aspromonte’s interest' in the partnership; (3) that if, as a matter of law, the partnership ceased to exist upon the refusal of the defendant Aspromonte to pay Lettieri the $300 mentioned, for the reasons stated, Aspromonte was entitled to judgment for the worth of his services on said buildings, and the money expended by him on the same, on account of the lien placed on said land and buildings by him, January 28th,' 1898.</p> <p>But the court held (1) that Aspromonte’s agreement with' Lettieri was a. personal one, not so recognized or assented to by the plaintiff as to bind the fund in the plaintiff’s hands to any claim of Aspromonte’s arising thereunder; (2) that in any event this agreement was abandoned and rescinded by the acts of Aspromonte and Lettieri, as found; (3) that the so-called lien of Aspromonte was of no effect to bind the plaintiff or his property; (4) that whatever claim the defendant Aspromonte has or may have for labor performed and services rendered, is not a claim against the plaintiff or against this specific fund in the plaintiff’s hands, in the shape in which the same is presented to the court in this action; and (5) that Aspromonte’s independent claim against Lettieri could not be adjudicated in this action; and thereupon rendered judgment as above stated.</p>

Writ of error to reverse a judgment of the Superior Court for New Haven County (Shumway, J.) rendered in favor of the defendant, brought to the Supreme Court of Errors held at Bridgeport within and for the third judicial district on the fourth Tuesday of October, 1899. The principal error assigned is the action of the Superior Court in sustaining the defendant’s demurrer to the complaint.

Action to recover for professional services rendered by a physician, brought to the City Court of New Haven and tried to the jury before JDoic, J.; verdict and judgment for the plaintiff for $225, and appeal by the defendant for alleged errors in the rulings of the court. The bill of particulars contained the items and dates of the professional services rendered by the plaintiff to John Reilly, defendant’s testator, between February 8th and May 16th, 1897, amounting to $391.

Actions to recover damages for personal injuries claimed to have been caused by tlie defendant’s negligence, brought to the Superior Court in New Haven County and heard in damages to the court, Boraback, J.; facts found and judgment rendered for the plaintiff in each case for nominal damages only, and appeal by them for alleged errors in the findings and conclusions of the court.

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, brought to the District Court of Waterbury and thence by appeal to the Superior Court in New Haven County and heard in damages to the court, Roraback, J.; facts found and judgment rendered for the plaintiff for $8,000 damages, and appeal by the de~' fendant for alleged errors in the rulings and findings of the court.

Action to recover damages for negligently setting on fire and burning tbe plaintiff’s store and contents, brought to the Superior Court in New Haven County and tried to the jury before Shumway, J.; verdict and judgment for the defendant, and appeal by the plaintiff for alleged errors in the rulings and charge of the court.

Action to recover damages for injury to and depreciation in the value of land of the plaintiff’s testator, caused by the elimination of a grade-crossing, brought to the Superior Court in New Haven County where a demurrer to the complaint was overruled (Elmer, J.') and the cause was afterwards tried to the jury before Shumway, J.; verdict and judgment for the plaintiff for $2,200, and appeal by the defendant for alleged errors in the rulings and charge of the court.

<p>Action of contract on a writ which contained a process of foreign attachment, brought to the Court of Common Pleas in New London County and tried to the court, Studley, J., upon motion to erase the cause from the docket owing to the lack of jurisdiction; the court held that its want of jurisdiction appeared upon the face of the record and thereupon granted the motion, and the plaintiff appealed for alleged errors in the rulings of the court.</p> <p>It appeared from the writ and complaint that the plaintiff was a Connecticut corporation, and that the defendants and garnishees were all residents of New York City. The directions for a garnishment were to leave a copy of the papers “with Frederick Holbrook, William B. Cabot, John W. Daly and James W. Rollins, Jr., all of New York City, State of New York, copartners doing business under the firm name of Holbrook, Cabot and Daly, or at their usual place of abode, as he they are the agents, trustees, and debtors of said defendant and have concealed in their hands the goods, effects and estate of said defendant and are indebted to them. And you are further commanded to summon said garnishee to appear before said court at the time and place first mentioned, then and there to disclose on oath whether he they have concealed in their hands, the goods, effects or estate of said defendant, or are indebted to them.”</p> <p>The officer’s return was as follows: —</p> <p>“ State oe Connecticut, 1 New London County, j ss‘</p> <p>“New London, November first, 1898.</p> <p>“ Then and there by virtue hereof, I attached as the property of the within named defendant, all goods, effects, money and debts due to or belonging to the within named defendant and in the hands or possession of the within named garnishee, by leaving with James W. Rollins, Jr., named herein as garnishee, a true and attested copy hereof at least twelve days before the session of the court to which this writ is returnable, said garnishee being herein named and described as the agent, trustee and debtor of said defendant, and said garnishee having been duly inquired of by me, disclosed that he was they were indebted to said defendant at the date hereof in the sum of $ , and I made diligent search throughout my precincts for other goods and estate of said defendant, whereof to attach, but could find none. And afterwards on the day of , 189 ,1 left with at the usual place of abode of the within named defendant, a true and attested copy of the within writ, summons and complaint, with my said doings thereon indorsed.</p> <p>“Attest, John N. Cabboll, Deputy Sheriff.</p> <p>“ Fees—Miles travel, . $1.90</p> <p>Copies, . . .75</p> <p>Service, . . .12</p> <p>Indorsement, . .37</p> <p>“$3.14”</p> <p>A plea in abatement was filed, and a demurrer to it was overruled by agreement. An oral motion to erase the cause from the docket was then made by the defendants, and granted; a judgment being entered that it be so erased “ for lack of jurisdiction apparent on the face of the papers.”</p>

Action to recover damages for personal injuries claimed to have been caused by the defendant’s negligence, brought to the District Court of Waterbury and tried to the jury before Cowell, J.; verdict and judgment for the plaintiffs for 11,000 damages, and appeal by the defendant for alleged errors in the rulings and charge of the court.

Suit to determine the proper construction of a deed and the rights of the respective parties thereunder, and also claiming damages, brought to the Court of Common Pleas in New Haven County and reserved by that court, Hubbard, J., upon the defendant’s demurrer to the substituted complaint, for the consideration and advice of this court.

Petition for a recount of votes and for a decree adjudging the petitioner to have been the duly-elected collector of the city of Bridgeport, brought to and tried by the lion. Ralph Wheeler, a judge of the Superior Court, who found the facts and rendered judgment for the respondent, from which the petitioner appealed.

<p>Action to recover for professional services, and for money paid, laid out and expended by the plaintiff’s intestate, brought to the Superior Court in Fairfield County and tried to the jury before Ralph Wheeler, J.; verdict and judgment for the plaintiff, and appeal by the defendant for alleged error of the court in overruling his motion in arrest of judgment because of the claimed insufficiency of the complaint.</p> <p>The complaint is as follows: “ 1. On or about January 1st, 1896, the defendant owed John L. Morehouse, then in full' life, $2,000, for money paid, laid out and expended for the defendant, and for work performed and professional services rendered to the said defendant by the said John L. More-house. 2. On or about January 1st, 1896, the said John L. Morehouse died, leaving no last will and testament. 8. On the 19th day of January, 1898, the plaintiff was appointed administratrix upon the estate of the said John L. More-house, and duly qualified as said administratrix. The plaintiff claims $3,500 damages.”</p> <p>A bill of particulars was filed, which contains detailed charges for a lawyer’s services extending over a period of about five years, amounting in the whole to $2,504.76,-includ-ing consultations and correspondence with the defendant; and detailed credits for payments on account of such services extending over the first four years, showing the amount due and unpaid on January 1st, 1895, to be $1,858.65.</p> <p>The answer is as follows: “ The defendant denies the truth of the matters contained in the plaintiff’s complaint and bill of particulars, except the items of credit, which are admitted.”</p> <p>After verdict for the plaintiff the defendant filed a motion in arrest of judgment for the following reasons: “ 1. That the plaintiff’s complaint and matters therein contained are insufficient in the law to warrant any judgment to be rendered thereon in favor of- the plaintiff. 2. Because the complaint avers that on or about January 1st, 1896, the defendant owed John L. Morehouse, then in full life, $2,000, and it does not aver that the same was due and unpaid, or that the same has not been paid.”</p> <p>This motion was overruled, and judgment rendered for the plaintiff. The appeal assigns for error the refusal of the court to arrest judgment for the reasons stated.</p>

<p>Action to recover damages for personal injuries claimed to have been caused by the defendants’ negligence, brought to the Court of Common Pleas in Fairfield County and heard in damages to the court, Ourtis, J.; facts found and judgment rendered for the plaintiff for §387 damages, and appeal by the defendants for alleged, errors in the rulings of the court.</p> <p>The defendants having suffered a default, the following facts were found by the court upon the hearing in damages.</p> <p>The plaintiff, an employee of the defendants, was working an automatic drop-press, run by power. This press as originally constructed was operated by two hand levers, one on each side of the press. By working these two levers a hammer weighing 250 pounds was lifted by power 10 or 12 inches, and then permitted to drop of its own weight upon a plate upon which the piece of metal to be flattened was placed.</p> <p>To obviate the slow method of working the machine by two levers, the defendants so adjusted it that the right-hand lever was not used, but the machine was worked by the left-hand lever alone. The right-hand lever, which is a handle hanging from the side of the machine, and which was of no further use and could have been removed, was left upon the machine after the change was made. At the time of the accident it was so connected with the internal mechanism of the press, that if subjected to continual lateral pressure from the inside it affected the left-hand lever so that the latter when raised up did not fall back of its own weig'ht as usual, but remained up, and the hammer then had a continuous up and down movement. The left-hand lever (when not so affected), if raised, caused the hammer to fall and rise, and when said lever was let to fall back of its own weight it caused the hammer to remain up ten or twelve inches above said plate.</p> <p>The press was used to flatten pieces of metal. The pressman placed the pieces of metal on the plate beneath the hammer with his hand. This movement necessarily carried the hand under the hammer. After the metal was struck by the hammer, the pressman used the piece of metal next to be flattened to push the one last flattened off- the plate, and so on continuously. The pieces of metal thus pushed from the plate fell on a flat surface of the machine, and gradually worked over the side of the press into a box placed to receive them.</p> <p>Said pieces of metal, when so working over the side of the machine, were liable to give said right-hand lever a lateral pressure sufficient to prevent the left-hand lever from falling, and thus to cause said hammer to rise and fall continuously; and said possible effect was known to the defendants. It was not known to the plaintiff, and could not be known to him from observing and working the machine. Said affect was very dangerous to the pressman, however the machine was worked, and the plaintiff was never told of such danger.</p> <p>The defendants were negligent in that they did not use reasonable care in providing a reasonably safe drop-press for the plaintiff to use, said press being unsafe for the reasons just stated.</p> <p>The plaintiff when first put to work upon this machine found that employees of the defendants worked the same by tying up the left-hand lever and thus giving the hammer a continuous up and down movement of about 109 strokes a minute. He also found that the pay for work upon said machine was by the piece, and that only trifling wages could be earned by so slow a method of working the press as raising said lever up and letting it fall back at each stroke of the hammer, and that in order to earn ordinary wages it was necessary to increase the speed by getting a continuous motion of the hammer by tying up the left-hand lever. No evidence of the actual amount of wages paid this plaintiff was offered or received. The foregoing was a general statement of the plaintiff made on cross-examination.</p> <p>For some two months prior to the day of the accident he had worked at the machine, and when engaged thereon had tied up said lever, and had not been stopped from so doing, or informed that there was any rule to the contrary. On the day in question the plaintiff had about two hours of work on the press, and he worked the same as above described. When the last piece of metal had been put upon the plate and hammered, he turned to slip the string from said lever and bring the hammer to a rest before removing said metal from the plate. He slipped the string and, assuming that the lever would fall as usual and stop the hammer, he thrust his hand forward to remove the metal from the plate as the hammer rose, hut the hammer fell again and crushed his thumb. This falling of the hammer was occasioned by the pieces of flattened metal pressing against said right-hand lever and affecting the internal mechanism of the press so that the left-hand lever could not fall.</p> <p>The plaintiff was not guilty of negligence in any way whatever. He followed his usual custom in permitting the pieces of metal to gradually work over the side of the machine into the box.</p> <p>Upon the foregoing facts the defendants claimed that they were not guilty of negligence in not removing said right-hand lever from said machine, and that the plaintiff was guilty of contributory negligence in tying’ up said left-hand lever and in permitting said pieces of metal to accumulate upon said machine, and in placing his hand beneath said hammer when removing said last piece of metal. These claims the court overruled, and rendered judgment for substantial damages.</p> <p>These adverse rulings of the court constituted the defendants’ reasons of appeal.</p>

; facts found and judgment rendered discharging the rule to show cause and dismissing the application, and appeal by the petitioner for alleged errors in the rulings of the court.

Action of replevin by a mortgagee for a furnace sold by tlie mortgagor to the defendant, by whom it was removed from the mortgaged premises, brought before a justice of the peace and thence by the defendant’s appeal to the Court of Common Pleas in Fairfield County and tried to the court, Curtis, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court.

<p>Action for the specific performance of a contract to convey certain land, or for damages, brought to the Superior Court in Fairfield County where John Hurd was, by order of the court, Thayer, Jdropped as a party plaintiff upon motion of the defendant, and the case was afterwards tried to the court, Elmer, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court.</p> <p>The complaint claimed the specific performance of a written contract for the conveyance of land, or damages. As amended it reads as follows: “1. On the 6th day of September, 1886, John Hurd and Charles B. Hotchkiss, then in full life, executed a certain agreement upon the consideration appearing therein, of which Exhibit A*, hereto annexed, is a copy. 2. On said day the said Charles B. Hotchkiss owned in fee an undivided one half of a large tract of land in said Franklin county, embracing within its limits the following described premises (description omitted). 3. Said corporation was duly formed as contemplated by said agreement, and consists of the said St. Regis River Lumber Company, one of the plaintiffs herein, and the said John Hurd, and said corporation duly performed on its part all of the undertakings appearing in said agreement. 4. Said Charles B. Hotchkiss in his lifetime performed all of his part of said covenants in said agreement, except the conveyance of his interest in the tract of land above described. 5. The plaintiffs, by John Hurd, duly demanded of Elizabeth E. Hotchkiss, on or about July 1st, 1897, a conveyance of said lands to said corporation in accordance with the terms of said agreement. 6. The said Charles B. Hotchkiss died October 10th, 1886. 7. Said Elizabeth E. Hotchkiss is the widow of said Charles B. Hotchkiss, and by the terms of the will, duly executed by him and admitted to probate, obtained title to all of the property and effects of said Charles B. Hotchkiss, including said piece of land above described, and still retains the title to the same. 8. There was a limitation for the presentation of claims on the estate of said Hotchkiss, which was six months from October 23d, 1886, and a further time of two months from July 25th, 1887. 9. Said claim was not presented to said estate during said time.”</p> <p>The answer was in five defenses as follows: —</p> <p> First Defense. </p> <p>1. The defendant specifically denies that the plaintiff is, or at the time of the commencement of this suit was, an incorporated company with power as such to maintain this suit. 2. As to paragraph 1, it is denied that on the 6th day of September, 1886, or at any other time, Charles B. Hotchkiss executed and delivered the agreement Exhibit. A. 3. Paragraph 3 is denied. 4. As to paragraph 5 it is denied that the plaintiff ever demanded of Elizabeth E. Hotchkiss, either directly or indirectly, on or about July 1st, 1897, a conveyance of said land to said corporation, in accordance with the terms of said agreement.</p> <p> Second Defense. </p> <p>The plaintiff has no legal or equitable interest in the subject-matter of this suit, but if there ever was any cause of action for the subject-matter set out in this complaint, the plaintiff has long before the commencement of this action sold and transferred the same, directly or indirectly, to the St. Clara Lumber Company, and has never since obtained, held or possessed any right in or over the cause set out in this complaint.</p> <p> Third Defense. </p> <p>By the law of the State of New York, where the property described in the second paragraph of this complaint is located, the defendant has an interest in said property as the wife during the lifetime of the said Charles B. Hotchkiss, and as his widow since his decease, which was not, and could not be, affected by the agreement, Exhibit A, and this defendant, on the allegations of the complaint, cannot be compelled to transfer the title to said land.</p> <p> Fourth Defense. </p> <p>Subsequent to the 6th day of September, 1886, and before the commencement of this suit, and before the right of any other parties had intervened, the parties to said agreement, Exhibit A, mutually agreed each with the other that said agreement should not be carried out and carried into effect, and that the same should be rescinded and revoked so far as the conveyance to said corporation of the land described in this complaint was concerned, and thereupon both of said parties thereafter substituted the agreement herein referred to for, and in place of, any provisions to which it was applicable of the alleged agreement Exhibit A.</p> <p> Fifth Defense. </p> <p>The right of action for the cause stated in said amended complaint did not accrue within ten years nest before the commencement of this action.</p> <p>The material facts were these. 1. On the 6th day of September, 1886, and for some time prior thereto, John Hurd and Charles B. Hotchkiss, then copartners in business, were engaged in the lumber business in the Adirondack region, and as such partners were owners of a large tract of land and much personal property in Franklin county. 2. The land described in the complaint consists of a strip used and occupied as a road, upon and over which is operated a railroad known as the Northern Adirondack Extension, or its successor. 3. On the 4th day of September, 1886, there was a meeting at which it was claimed the plaintiff corporation was organized, and said John Hurd was elected president and Charles L. Hotchkiss, son of Charles B. Hotchkiss, was elected secretary. There never was any subsequent meeting of the stockholders, or of the corporation, for the election of officers. 4. On the 6th day of September, 1886, the said partners, with a view of transferring their interest to a corporation which had been or was to be organized, executed an agreement for that purpose, as appears from Exhibit A. 5. Said corporation purported to have been duly organized under and by virtue of the laws of the State of New York, under the name of the St. Regis River Lumber Company, and was located in the town of Brandon, Franklin county. 6. At the time of these transactions the said Charles B. Hotchkiss was sick and weak physically and mentally, was suffering from Bright’s disease, and was frequently unconscious. 7. On the said 6th day of September, 1886, the said Hurd & Hotchkiss conveyed to said St. Regis River Lumber Companjr all of the real estate owned by them in said Franklin county, except the strip of land described in this complaint running through said tract, used as a right of way for a railroad, as appears from Exhibit 2 .* 8. The said St. Regis River Lumber Company, after the conveyance of said land from said Hurd and Hotchkiss, paid tbe obligations and debts of said firm which existed at the time of the execution of Exhibit A. 9. Sometime subsequent to September 6th, 1886 (the exact date does not appear), the assets of the plaintiff company were transferred to the St. Clara Lumber Company of said State of New York. 10. On the 10th day of October, 1886, said Charles B. Hotchkiss died, and by a aat.11 duly executed and admitted to probate, the defendant Elizabeth E. Hotchkiss, his widow, received title to this said strip of land, and still owns the same. 11. On the 12th day of March, 1897, John Hurd demanded a deed of the premises in question from tins defendant. Sometime previous to this the said railroad company, in its own behalf, endeavored to obtain a deed of the same premises from the defendant. 12. On the 14th day of March, 1887, the said Hurd conveyed his interest in said right of way to the Northern Adirondack Extension Railroad Company, which, so far as appears, has ever since retained the same. The copartnership of Hurd and Hotchkiss consisted of said John Hurd and Charles B. Hotchkiss. 18. The deed, Exhibit 8, conveyed all the land of Hurd and Hotchkiss, except that occupied by the railroad company for a right of way. 14. The St. Regis River Lumber Company was organized to take over the business of the co-partnership of Hurd and Hotchkiss and, for all that appears to the contrary, is still in existence. 15. No evidence was introduced in support of the defendant’s fourth defense. 16. From the evidence it does not appear that the defendant, Mrs. Hotchkiss, knew of the contents of the deed, Exhibit 8, when she signed it, but signed it, as she avers, in consequence of the statement of John Hurd, that it was done so the business need not be wrecked when her husband died, and that it was for her interest as well as for his own. On this occasion Mr. Hurd was accompanied by his lawyer, but Mr. Hotchkiss and the defendant had no counsel present. 18. No evidence was introduced or explanation offered or given for the delay in demanding a conveyance of these premises, or in bringing this suit. 19. No evidence was offered by the defendant, Mrs. Hotchkiss, in support of her third defense.</p>

Halfh Wheeler, a judge of the Superior Court; facts found and judgment rendered in favor of the plaintiff, and appeal by the defendants for alleged errors in the rulings of the judge. The following are the allegations of the application : “ 1.

Suit to determine the construction of the will of George Mallory of Bridgeport, deceased, brought to the Superior Court in Fairfield County and reserved by that court, Robinson, J., upon the facts alleged in the complaint, for the consideration and advice of this court. All the questions raised concerned the interests of those succeeding to the devises and bequests in favor of George S. Mallory, a son of the testator, who died before him.

Action of replevin to recover a quantity of groceries, brought to the Court of Common Pleas in New Haven County and tried to the court, Bishop, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court. The finding states the facts on which the judgment is founded, as follows: — “1.

Action to recover the amount of a loss under a policy of fire insurance, brought to the District Court of Waterbury and thence by the defendant’s appeal to the Superior Court in New Haven County, and tried to the court, Rorabaclc, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendant for alleged errors in the rulings and findings of the court.

<p>The action of a municipal board within the scope of its authority is in legal effect the action of the municipality.</p> <p>A defendant who, under a general denial, has had the full benefit of all the evidence he could have introduced under several special defenses, is not injured by a ruling of the trial court sustaining a demurrer to such defenses.</p> <p>Whether the use of a stream by one riparian proprietor is reasonable or not, in view of the rights of other proprietors, depends largely upon the circumstances of each case and is essentially a question of fact.</p> <p>The mere grant to a city of legislative authority to build sewers for the convenience and benefit of its citizens in carrying off their refuse matter and discharging it into a neighboring stream, does not necessarily make such use of the sewers a governmental act to the extent of exempting the city from all liability to lower riparian proprietors who are injured by such sewage.</p> <p>The discharge of the accumulated filth and sewage of a city into a stream in such quantities that it is necessarily carried to the premises of a lower proprietor where it causes a nuisance dangerous to his health and destructive of the value of his property, may be justifiable upon the ground of public necessity, but only upon payment of compensation for the property thus taken.</p> <p>The right to maintain such a nuisance cannot be acquired by prescription.</p> <p>The plaintiff owned property in the defendant city which, pursuant of its ordinances, now drained into its sewers and thus into the stream. Held that this did not show such contribution upon his part to the injury as to deprive him of equitable relief.</p> <p>It appeared that the legislature had taken some steps towards the adoption of a plan for the sewerage of the whole Naugatuck valley. Held that the rights of the plaintiff were not contingent upon the future action of the legislature, and were properly protected by the injunction issued by the trial court.</p> <p>The granting or refusal of an injunction rests in the sound discretion of the court.</p> <p>The plaintiff testified that his foreman refused to take charge of the premises, because of the stench arising from the stream. Meld that this testimony was admissible, not to prove the fact of the stench, hut the ground of the foreman’s refusal.</p> <p>A witness testified that he had refused to work on the plaintiffs’ premises for a similar reason. Meld that the fact that this refusal was after the suit had been brought, went only to the weight of the evidence.</p> <p>The vote of a municipality not to accept a certain Act, is irrelevant to prove the construction of another Act.</p> <p>The defendant’s charter examined, and held to authorize payment by the city for private property taken for the purpose of maintaining and using the sewers.</p>

, upon a finding of facts, for the consideration and advice of this couit. The material facts in the case are these: Julius Converse of Stafford in tins State died intestate in June, 1892, leaving a widow, Mira L. Converse, and four children, to wit, Eugenia C. Mathews, wife of A. B. Mathews of Chicago, Lillia A. Lee, wife of William Lee, J. Carl Converse, and Louis S. Converse, all of Stafford.

Action for fouling a brook and mill privilege by tbe discharge of sewage, claiming damages and an injunction, brought to the Superior Court in Litchfield County and tried to the court, Shumway, J.; facts found, injunction refused, and judgment rendered for the plaintiff for $50 damages, and appeal by the defendant for alleged errors in the rulings of the court. The finding stated these facts: The plaintiffs’ land is situated on Great Brook hi New Milford.

Action for a divorce, brought to the Superior Court in Hartford County and tried to the court, Rorabaeh, J.; facts found and judgment rendered dismissing the complaint as premature, but without prejudice to the right of the plaintiff to bring another action upon the same ground at a proper time, and appeal by the plaintiff for alleged errors in the rulings of the court. The finding of facts is as follows: “ 1.

Iheobmatioh in the nature of quo warranto to determine the defendant’s title to the office of superintendent- of streets' of. the city of Putnam, brought to the Superior Court in Windham County and tried to the court, Shumtoay, J., upon the relator’s demurrer to the defendant’s plea; the court sustained the demurrer, denied a motion to amend the jilea, and rendered judgment of ouster, from which the defendant appealed for alleged errors in the rulings of the court.

Action to recover the amount of three f1,000 bonds issued by the defendant and held by the plaintiff as collateral security, brought to the Superior Court in Tolland County and tried… Held: the plaintiff continued to discount Risley’s said note, and on August 1st and December 13th, 1894, to renew the unpaid balance thereof, i. e. $3,000 in each instance, by four months renewal notes. Said note of December 13th, 1894, was the last renewal note, payable four months from date.

<p>Action to recover the amount of a real estate broker’s commission, brought originally before a justice of the peace and thence by the defendant’s appeal to the Court of Common Pleas in Litchfield County and tried to the court, Bradstreet, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court.</p> <p>The case is sufficiently stated in the opinion.</p>

Action upon the common counts to recover the amount of a promissory note, and a balance due for merchandise sold and delivered, brought to the City Court of Hartford and tried to the jury before Morse, J.; verdict and judgment for the plaintiffs, and appeal by the defendant for alleged errors in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Action to quiet and settle the title to certain real estate devised by will, brought to the Superior Court in Hartford County, and reserved by that court, Ror aback, J., upon a finding of facts, for the consideration and advice of this court.

Action to recover the income accrued from certain property bequeathed to two tenants for life, brought by the surviving life tenant to the Court of Common Pleas in Hartford County and tried to the court, Oase, J., upon the defendants’ demurrer to the complaint; the court overruled the demurrer and afterwards rendered judgment for the plaintiffs, and the defendants appealed for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

<p>Section 3886 of the General Statutes provides that if any tax laid by a city shall remain unpaid for one month after it becomes due, interest at nine per cent shall be charged thereon, which shall be collectible “ as a part of the tax; ” and § 3862 provides that the pendency of an appeal from the board of relief to the Superior Court shall, subject to the order of the court, suspend action upon the tax against the appellant, but shall not suspend proceedings in collecting other taxes. In a suit to collect a tax it was held that while the right of thd city to enforce payment by suit or other adversary legal proceeding was suspended by § 3862, pending the taxpayer’s appeal, the statute imposing interest continued in full force and justified the city in demanding and collecting interest as a part of the tax when the validity of the latter had been finally established.</p>

Information for the violation of a city ordinance concerning the sale of milk, brought to the City Conrt of Waterbury and thence by the defendant’s appeal to the District Conrt and tried to the conrt, Cowell, J., upon the defendant’s demurrer to the information; the court sustained the demurrer and adjudged the defendant not guilty, and the State appealed for alleged errors in the rulings of the court. The information was in five counts.

Action to recover the amount of a forfeited bail bond for $500, brought to the District Court of Waterbury and tried to the court, Cowell, J.; facts found and judgment rendered for the plaintiff for $150 only, and appeal by it for alleged error of the court in reducing the amount of the bond. Two other cases—State v. Harbourne et al. and State v. Sullivan et al.—identical in their essential features, were tried, appealed and submitted with this case.

Writ of error to reverse a judgment of the City Court of New Haven, Bow, J., rendered against the plaintiff and others, brought to the Supreme Court of Errors held at New Haven within and for the third judicial district on the third Tuesday of January, 1900. The case is sufficiently stated in the opinion.

Action to recover damages for negligence resulting in the death of the plaintiff’s intestate, brought to the Superior Court in Hartford County and heard in damages to the court, Gteorge W. Wheeler, J.; facts found and judgment rendered for the plaintiff for nominal damages only, and appeal by him for alleged errors in the rulings of the court.

Action to recover damages for the obstruction of a pass-way, and for an injunction, brought to the Superior Court in New Haven County where the plaintiffs’ demurrer to certain parts of the answer was sustained (Prentice, J.), and the cause was afterwards tried to the jury before Shumway, J.; verdict and judgment for $200 damages against the defendant Straus, and appeal by him for alleged errors in the rulings and charge of the court.

Information for theft, brought to the Superior Court in New Haven County and tried to the jury before Thayer, J.; verdict and judgment of guilty upon the second count, and appeal by the accused for alleged error of the court in refusing to set aside the verdict and grant a new trial for a verdict against evidence. The information contained two counts.

Action to restrain the defendant from using the word “ Hygeia ” in its corporate name or otherwise, in connection with the manufacture and sale of ice, distilled water and beverages made therefrom, and for damages, brought to the Superior Court in New Haven County and tried to the court, Prentice, J.; facts found and judgment rendered for the plaintiff upon the second count of the complaint, and appeal by the defendant for alleged errors in the rulings and findings of the…

<p>The stock of a corporation which is being wound up in insolvency is a trust fund for the payment of its debts; and any one who attempts to withdraw any part of that fund to the prejudice of creditors must show a clear right to do so or fail in his attempt.</p> <p>The failure to make and file the certificate of increase of capital stock required by § 1954 of the General Statutes, is an irregularity, but does not make void the additional shares of stock actually issued. One who retains shares of irregularly issued stock and for years receives dividends thereon, with knowledge, actual or constructive, of the circumstances under which the stock was issued, is estopped from setting up such irregularities when sued by the receiver of the insolvent corporation to recover a balance due upon his stock subscription.</p> <p>A stockholder whose subscription is obtained by fraudulent representations, of which he has knowledge or the means of knowledge, must act promptly in rescinding his contract; otherwise he will be bound thereby.</p>

Action by the indorsee against the maker to recover the amount of two promissory notes, brought to the Superior Court in Windham County and tried to the court, Rorabaclc, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court. This case and the preceding one arose out of the same matter and were tried together, as in one aspect they were but parts of the same transaction.

Action to recover damages for personal injuries claimed to have been caused by a defective highway, brought to the Superior Court in Litchfield County where a demurrer to the complaint was overruled (George W. Wheeler, J.), and the cause was afterwards tried to the jury before Shumway, J.; verdict and'judgment for the plaintiff for |2,000 damages, and appeal by the defendant for alleged errors in the rulings of the court.

Action to recover damages .for personal injuries claimed to have been caused by the defendants’ negligence, brought to the Superior Court in Litchfield County and tried to the court, Shumway, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff for alleged errors in the rulings and findings of the court.

Samuel 0. Prentice, a judge of the Superior Court; facts found and judgment rendered in favor of the plaintiff, and appeal by the defendant for alleged errors in the rulings of the judge. The facts are sufficiently stated in the opinion.

<p>A person may insure his own life and make the policy payable to whomsoever he will, regardless of the payee’s insurable interest; unless, possibly, when it is done in bad faith as a mere device for speculating upon the hazard of the life.</p> <p>The gift of a policy of life insurance, if once executed by delivery to the payee, is irrevocable; and therefore the declarations and conduct of the donor evincing a subsequent intention to transfer the policy to another, are wholly insufficient to constitute a surrender or relinquishment upon the part of the original donee.</p> <p>The delivery of an obligation, whether absolute or conditional, of a third party, for the payment of money, to the person named as payee, is at least prima facie evidence of an intent to invest the payee with the beneficial right of action upon it.</p> <p>A party cannot escape the duty of producing a written instrument mar terial to the issue and admittedly in his possession, by passing it over to his attorney pending the suit. The latter may be called as a witness and compelled to'produce the document as evidence.</p> <p>The donee of a policy of life insurance, who had been in partnership with the donor, left the policy in the firm’s safe after, as he had done before, the dissolution. Held that he might be permitted to state how he came to leave it there, for the purpose of refuting any claim that in so doing he intended to surrender or relinquish his interest as payee.</p> <p>As a fact which had influenced his conduct, a witness may state what he thought or believed at a certain time.</p> <p>Testimony of the donee, that the policy in a suit was never held by him’ as security for a debt, as claimed by the donor’s administratrix, is not open to the objection that it is the witness’s construction of the alleged agreement.</p> <p>A leading question may always he replaced by one unexceptionable in form, although the attention of the witness is thereby directed to the desired answer. The only remedy for this evil lies in the power of' the trial court to regulate the conduct of counsel.</p> <p>Declarations of a decedent relevant to the issue are admissible as against his personal representative.</p>

Action to determine and quiet the title to certain real estate, brought to the District Court of Waterbury where the defendant filed a plea to the jurisdiction to which the plaintiff demurred; the court, Cowell, J., overruled the demurrer and sustained the plea, and the plaintiff appealed for alleged error in this ruling of the court. The case is sufficiently stated in the opinion.

Action to recover damages for breach of contract, brought to the District Court of Waterbury and tried to the jury before Bradstreet, J.; verdict and judgment for the plaintiff for |900 damages, and appeal by the defendants for alleged errors in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Action to recover damages for an injury to the plaintiff’s roadway caused by a break in the defendant’s reservoir embankment, brought to the Superior Court in New Haven County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff for $4,839 damages, and appeal by the defendant for alleged errors in the rulings of the court.

Action on a policy of insurance, tried to the jury (Curtis, J.) in the Court of Common Pleas for Fairfield County. After the plaintiff had introduced all his evidence and rested his case, the defendant moved for judgment as in case of nonsuit, which motion was granted, on the ground that the policy required immediate notice of the loss to be given to the insurer, amd that as the evidence disclosed a delay of twenty-four days in giving it, it was not immediate.

Action by a trustee in insolvency to recover personal property fraudulently transferred by the insolvent debtor, and also for damages, brought to the Court of Common Pleas in Fairfield County and reserved by that court, Qurtis, J., upon a demurrer to a plea in abatement, for the consideration and advice of this court.

Action to foreclose a mortgage of real estate, brought to the Superior Court in Fairfield County and tried to the court, Shumway, J., after a demurrer to the amended complaint had been overruled (Greorge W. Wheeler, J.); judgment for the plaintiff and appeal by the defendant for alleged errors in the rulings upon the demurrer. The amended complaint in this case, claiming foreclosure of a mortgage, is as follows:— “ 1.

<p>Indictment for murder in the first degree, brought to the Superior Court in Fairfield County and tried to the jury before Borabaek, J.; verdict and judgment of guilty, and appeal by tbe accused for alleged errors in the rulings and charge of the court.</p> <p>The finding states the following facts: The indictment charged the defendant with the murder of one Sarah C. King in the perpetration of the crime of rape. Upon the trial the State offered, as a declaration of the accused made on November 12th, 1899, the following statement signed by him: “ Statement of Charles Bertram Cross made to J. W. Rogers, Sunday evening, November 12th, 1899, at Stamford, Conn. I make it of my own free will.</p> <p>“ My name is Charles Bertram Cross. I am 17 years of age, and reside with my grandparents at Prospect Hill, Brooklyn. I have been in the employ of Mrs. Sarah King at the farms since June 1st, 1899. On Wednesday evening, November 8th, 1899, about 8 o’clock, Mrs. King and I sat down to supper. While eating supper I got passionate feeling, as though I should like to have something to do with a woman. About 20 minutes to 9 she said she was going to bed. Then I went up stairs and hid around until she came up. She came up in a few minutes, and as she was about to enter her room I pushed her and she fell on the floor. She started to holler, and I grabbed her by the head and pounded her head on the floor until she became unconscious. I am not sure, but I think I tore all her clothes off, and then I raped her until I satisfied my passion, after which I threw a blanket over her and ran to Mr. Merritt and told him I believed some one murdered Mrs. King. I did not pull any drawers out; I had no time to do it. I did not intend to kill Mrs. King. I must have been crazy when I done it. I did not use any weapon of any kind. I simply knocked her down and pounded her head on the floor. She died while I was away to the doctor’s. I picked her up off the floor and placed her in the bed where I raped her.</p> <p>“My former statements were false, I have read this carefully and it is true.</p> <p>“ This is my confession.</p> <p>“ C. B. Cross.”</p> <p>The State also offered another statement of similar character, but more in detail, made the following day. Before offering said statements the State had offered evidence, including proof of the autopsy of Mrs. King and statements and conduct of the accused on the evening of the murder, to prove that Mrs. King had been raped and murdered as alleged, and that the accused had committed the crime.</p> <p>The defendant objected to the admissibility of these statements, and at his request the jury were dismissed and evidence was received by the court as to whether the declarations were voluntary. The detective to whom the statements were made, the bailiff who had the prisoner in charge, the accused himself and the counsel for the accused who was conducting the defense, testified. The testimony was conflicting. It appeared during the testimony that the accused was arrested on the night of the killing and remained in Mrs. King’s house until the next morning, when he was taken to the office of the deputy-sheriff in Stamford, where he was kept five or six days. During this time no one was allowed to see him except his counsel, and that but once — the afternoon he came to Stamford. His counsel made several applications to have an interview with him, but was denied the privilege until he had obtained permission from Mr. Fessenden, the State’s Attorney. His attorney was not able to find Mr. Fessenden until the following Monday, when permission was at once given to see the prisoner.</p> <p>After hearing all the testimony the court found that the declarations were made by the defendant freely and voluntarily, and that he was not induced to make them by any threats, promises, or inducements, made to him by any one; and admitted the declarations in evidence. Counsel for defendant duly excepted.</p> <p>After this and during the examination of the detective before the jury, objection was again taken that the story told showed there was intimidation which ought to bar the declarations, but the court allowed the same to go to the jury with all the facts and circumstances; to be given such weight as the jury should deem them to merit.</p> <p>Afterwards the State introduced declarations subsequently made to deputy-sheriff Miller. The defense objected, on the ground that since a written declaration had been admitted an oral one could not be received. The testimony was admitted and defendant excepted.</p> <p>Afterwards the State offered the testimony of one E. Z. Fallon, without objection by the defendant, that the defendant had stated to him that he had tilled Mrs. King, that he had confessed to the fact, and had so confessed because he thought there was no use lying about it any longer.</p> <p>The defendant offered no defense except that of insanity. He did not take the stand himself, but offered the testimony of relatives and medical experts that he was insane.</p> <p>The State offered in rebuttal one Samuel B. Mead, as a non-expert witness, to show that the accused was sane. The witness testified that he had been acquainted with the accused from last June until the time of his arrest; that he had seen him probably every week and sometimes three or four times a week; that he had worked with him getting in hay; that he had talked with him on farming in general, and about their work. The defendant objected that such testimony did not lay sufficient foundation to take the opinion of the witness as to the sanity of the accused. The court admitted the opinion and the defendant excepted.</p> <p>The State then introduced in rebuttal several other non-expert witnesses, and also medical experts.</p> <p>The defendant requested the court to charge that if the killing of Mrs. King was not intended by the accused, but was occasioned simply by striking her head on the floor for the purpose of keeping her quiet, such manner of killing would not imply malice and the killing would not be murder ; and that if the killing took place in this manner, such killing would not be murder in the first degree, even though the accused was attempting to rape the deceased at that time.</p> <p>The court refused to so charge the jury, but did charge on these points as follows: —</p> <p>“ When an unlawful, unintentional killing of a human being happens, which is committed in perpetrating or attempting to perpetrate the crime of rape, the killing will be murder and not manslaughter. If the offense would have been murder at common law, then, although there was no intent to take life, the case, if the homicide was committed in the perpetration, or attempted perpetration, of rape, as charged, is murder in the first degree.</p> <p>“And, gentlemen, if you believe from all the evidence, beyond a reasonable doubt, that the said Sarah C. King was killed with malice aforethought by the defendant, as charged in the indictment, and also that at the time the defendant was perpetrating or attempting to perpetrate the crime of rape, and thereby caused her death, then the accused is guilty of murder in the first degree, if you should find him criminally responsible for such action, although he may not have intended to take the life of Mrs. King.”</p> <p>To this charge and refusal to charge the defendant excepted.</p> <p>During the selection of the jury, one Andrew B. Curtis was examined on the voir dire. He testified that he had formed no opinion about the merits of the case, and could in his opinion act impartially as a juror, and that he would give the prisoner the benefit of every reasonable doubt. He .was then examined by counsel for defendant touching his understanding of the duty of the State to prove every allegation beyond a reasonable doubt. After this the counsel asked him: “What do understand by the phrase, the criminal</p> <p>responsibility of the prisoner ? A. The criminal responsibility of the prisoner? Q. Yes, sir. A. I don’t know as I exactly understand so as to make an answer to that. Mr. JFessenden. What is the object of that? It doesn’t seem to me — Mr. Rowell (interrupting). I will change my question. - Q. Supposing the court should charge you that the criminal responsibility of a person is not determined solely from the act or nature of the act alone, but that the law takes into consideration the state of his mind when that act was committed, and in some cases says that he was incapahie of committing the crime, or exempts him altogether from liability. From that charge what would you understand ? ”</p> <p>The State objected to the last question, and the court sustained the objection. Defendant excepted. Said Curtis was duly accepted as a juror, no objection being made by the defendant to his qualification.</p> <p>The appeal assigns as error (1) the admission of the declarations of the accused; (2) the refusal of the court to charge as requested, and the charge as made; (3) the admission of the testimony of the witness Mead; and (4) the exclusion of the question to the juror Curtis.</p>

Action of slander, brought to the Superior Court for New London County and tried to the jury (Thayer, J.~); verdict for the plaintiff to recover $633. A motion to set it aside as against the evidence, and because the damages were excessive, was denied, and judgment entered on the verdict.

Action to recover a balance claimed to be du.e on a building contract, brought to the Court of Common Pleas in Fair-field County and tried to the court, Carrol, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs for alleged errors in the rulings of the court.

Action to recover damages for personal injuries claimed to have been caused by the defendant’s negligence, brought to the Superior Court in Fairfield County and heard in damages to the court, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff for one dollar, and appeal by her for alleged errors in the rulings of the court.

Actioh to recover for services as a broker, brought to the Court of Common Pleas in New Haven County and tried to court, Bishop, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court.