Volume 73 — Connecticut Reports

Action upon the so-called common counts, brought to the Court of Common Pleas of Litchfield County, where the plaintiff was nonsuited because of his failure to file a proper bill of particulars within the time ordered by the court ( Welch, J.), from which judgment he appealed. Prior to this order the plaintiff attempted to file a substitute complaint, which the court declined to receive, and this refusal was also assigned as error.

Information for selling a newspaper devoted to and principally made up of criminal news, police reports, pictures and stories of bloodshed, lust and crime, brought to the Superior Court in New Haven County and tried to the jury before Borabaclc, J.; verdict and judgment of guilty, and appeal by the accused for alleged errors in the rulings and charge of the court.

Action to recover damages for injury to the plaintiffs’ premises caused by surface water, brought to the Court of Common Pleas in New Haven County and reserved by that court, Studleg, J., upon an agreed finding of facts, for the consideration and advice of this court.

Action to recover damages for a breach of contract, brought to the Court' of Common Pleas in Fairfield County and tried to the court, Ourtis, J.; facts found and judgment rendered for the plaintiff for §1,728, and appeal by the defendant for alleged errors in the rulings and findings of the court. The appellant also applied to this court to rectify the appeal in particulars not presented in his exceptions.

<p>Substantial compliance with a proper request to charge is sufficient;</p> <p>the court is not bound to charge in the very words of the request. A mere temporary residence does not make one an “inhabitant” of a town witliin tile meaning of that word as used in § 3288 of the General Statutes. The word implies a fixed, permanent dwelling-place, but not necessarily that the resident is a “settled inhabitant” of the town.</p> <p>A person “ maintains ” himself “ without becoming chargeable ” to the town, within § 3288 of the General Statutes, provided the town is put to no actual expense for his support. It is immaterial in such case that the person was supported in whole or in part by charity.</p> <p>An inhabitant of one town in this State, although non compos mentis, may by commorancy acquire a settlement in another town. Whether such a person could change his domicil from one State to another, quasre.</p>

Actions for divorce, brought to the Superior Court in Hartford County and tried to the court, Prentice, J.; facts found and judgment rendered in each case for the defendant, and appeal by the respective plaintiffs for alleged errors in the rulings of the court. These cases present but one question. The complaint in each case claims a divorce on the ground of habitual intemperance.

Suit to determine the validity and construction of the will of Susan Mansley of Enfield, deceased, brought to the Superior Court in Hartford County and reserved by that court, Robinson, J., upon an agreed finding of facts, for the consideration and advice of this court.

William S. Case, judge of the Court of Common Pleas for Hartford County, and heard by him upon the appellants’ demurrer-to a plea in abatement filed by the city; the judge sustained the plea and dismissed the appeal, and the appellants appealed to this court for alleged error in the ruling of the judge. The case is sufficiently stated in the opinion.

Suit to determine the construction of the will of E. Ludlow Cooke of Hartford, deceased, brought to the Superior Court in Hartford County and reserved by that court, Robinson, Jupon an agreed finding of facts, for the consideration and advice of this court.

Writ of error to reverse a judgment of a justice of the peace in an action of summary process, brought to the Court of Common Pleas in Hartford County where judgment of reversal was rendered by the court, Peck, J., from which the defendants appealed for alleged errors in the rulings of the court.

<p>A testator gave certain property in trust for his granddaughter, who was to receive the income thereof until she became twenty-five years old, when the trustees were directed “ to pay and transfer to her the principal, if they shall then deem it best for her interest; but should she die before receiving the same,” the trust was to continue for the benefit of her lawful issue. A subsequent clause provided that if the granddaughter, in the judgment of the trustees, should be “ incapable of managing her affairs ” when twenty-five, the trust was to continue until they should determine her to be capable, when the principal was to become hers absolutely. The granddaughter survived the testator and was more than twenty-five years old when she died, and was fully capable of managing her affairs; but no demand was made by her upon the trustees for a transfer of the property, and it remained in their hands at the date of her decease. In a suit to construe the will it was held: —</p> <p>1. That the beneficial interest vested in the granddaughter at the death of the testator, and the entire estate, free from the trust, when she reached the age of twenty-five years.</p> <p>2. That in order to have continued the trust beyond the prescribed age of the granddaughter, an affirmative judgment by the trustees, to the effect that she was then incapable of managing her affairs, would have been necessary.</p> <p>A devisee of an estate in fee maybe said to “ receive” the estate at the time he becomes entitled to receive it.</p>

Ineobmation for embezzlement, brought to the Superior Court in New London County and tried to the jury before Prentice, J.; verdict and judgment of guilty, and appeal by the accused for alleged errors in the rulings and charge of the court and in its denial of the defendant’s motion for a new trial upon the ground of a verdict against evidence.

Action to recover the amount of a non-negotiable promissory note, brought to the Superior Court in New London County and tried to the jury before Thayer, J.; verdict and judgment for the plaintiff, and appeal by the defendant for alleged errors in the rulings and charge of the court.

Suit to determine the construction and validity of the will of Jedediah Huntington of Norwich, deceased, brought to the Superior Court in New London County and reserved by that court, Thayer, J., upon the allegations of the complaint, for the consideration and advice of this court.

Action to recover damages for malicious prosecution, brought to the Superior Court in New London County and tried to the jury before Thayer, J.; verdict for the plaintiff for $1,000 damages, which the trial court, upon motion of the defendant, set aside as unreasonable and excessive, and the plaintiff appealed for alleged error of the court in so doing.

Action to recover for services as a real estate broker, brought to the Court of Common Pleas in Fairfield County and tried to the jury before Curtis, J.; verdict and judgment for the plaintiff of 1514, and appeal by the defendant for alleged errors in the rulings and charge of the court.

; facts found and judgment rendered in favor of the petitioner, and appeal by the respondent Tracy for alleged errors in the rulings of the court. The material parts of the will and codicils were as follows:— Will. “ First. I direct that all my just debts and funeral expenses and expenses of setting gravestone and placing suitable inscription on monument be paid out of my estate by my executors hereinafter named. “ Third. . . .

<p>Action to recover damages for the willful and unlawful destruction of the plaintiff’s dwelling-house, brought to the Superior Court in Fairfield County where the defendants’ demurrer to the plaintiff’s reply was overruled (Ralph Wheeler, J.') and the case was afterwards tried to the court, Shumway, J.; facts found and judgment rendered for the plaintiff for $800 damages, and appeal by the defendants for alleged errors in the rulings of the court.</p> <p>On the 16th of May, 1898, the plaintiff, upon her application, obtained permission of the common council of Bridgeport to move her dwelling-house from her lot on Maple Street, which runs east and west, easterly to a lot on the corner of Maple and Hallett streets, which lot the plaintiff had an option to purchase.</p> <p>The moving was commenced on the 13th of June. Plaintiff was hindered in the work by an injunction until the 30th of June, and about the 10th of July had moved the building as far as the corner of Pembroke Street; which runs north and south and crosses Maple Street west of Hallett Street. With reasonable dispatch it could have been moved to the corner of Pembroke Street in two days, and to its destination, at the corner of Hallett Street, in another day.</p> <p>On the 6th of July the plaintiff discovered that the lot on the corner of Hallett Street was not suitable for her purpose, and thereupon secured an option on a lot on Arctic Street, which is parallel with and the next street north of Maple, and is also crossed by Pembroke Street; and on the 10th of July applied for permission to move her building to said last-named lot, by moving it up Pembroke Street to Arctic Street and along Arctic about three-fourths of a block to said second lot. On the 19th of July the plaintiff was notified that the common council refused to grant that application.</p> <p>For the purpose of moving her house upon them, Pembroke and Arctic streets were as suitable as Maple Street. The removal of said building to the second lot would have required no more than two days additional time, and no greater expense than was required to take down the building; and the finding states that no good reason existed for the refusal of the common council to permit the plaintiff to so move the building to said second lot.</p> <p>A complaint having been made on the 18th of July that said building was an obstruction to public travel and a nuisanee, and a hearing having been had thereon, the common council passed a resolution directing plaintiff to remove the building from the highway within three days, and ordering the board of public works to forthwith remove the building from the highways of the city upon the failure of the plaintiff to comply with said order; and of this action of the city authorities the plaintiff was duly notified on the 19th of July.</p> <p>Although there was a vacant lot adjacent to said building, the plaintiff, after receiving notice of said action, made no effort to remove the building other than to notify the defendants in writing that she desired to remove said building to said lot on Arctic Street, but that she was not permitted to, and that if the defendants deemed it their duty to remove the building from the streets she desired them to move it upon said lot, and that she would hear the expense. She further warned them not to destroy or unnecessarily injure the building.</p> <p>One of the defendants, a contractor, employed by the other defendants, who were members of the board of public works and a committee duly appointed for that purpose, proceeded to take down and remove said building, commencing on the 23d of July. All of the acts of the defendants were done in good faith, by authority of the common council, and for the purpose of removing an obstruction and nuisance from said public highway.</p> <p>The house was a large one, filling the street from curb to curb, and completely blocking public travel, and was of the value of 1800.</p> <p>There was a demurrer to plaintiff’s reply to defendants’ answer, which was overruled by the court, and upon further pleading the above facts were found and judgment rendered thereon for the plaintiff.</p> <p>These claims of law were made by the defendants upon the trial:—</p> <p>“ The common council having the sole control under the charter of the removal of buildings through the public streets, acted within its power and discretion in refusing to allow the plaintiff to remove the building to a new location.</p> <p>“ The defendants having acted in good faith, without wantonness or malice, as the agents of the city, cannot be held liable for the loss of the plaintiff.”</p> <p>The plaintiff claimed “ that no good reason had been shown for the refusal by the common council of the plaintiff’s application to remove said building to a new and different location, and that therefore the defendants were liable for the destruction of said building.”</p> <p>The rulings of the court sustaining said claim of the plaintiff and overruling those of the defendants are among the reasons of appeal assigned.</p>

Action to recover damages for the wrongful seizure and disposal of personal property on execution, brought to the Court of Common Pleas in Fairfield county and reserved by that court, Curtis, J., upon a finding of facts, for the consideration and advice of this court. The case is sufficiently stated in the opinion.

Action to recover for services rendered and disbursements made in carting bricks, brought to the Court of Common Pleas in New Haven County and tried to the jury before Studley, J.; verdict for the plaintiff, which, upon motion of the defendant, was set aside as against the evidence, and appeal by the plaintiff for alleged errors of the court in setting aside the verdict. The case is sufficiently stated in the opinion.

Action to recover damages for personal injuries claimed to have been caused by the defendant’s negligence, brought to the Superior Court in New Haven County and heard in damages to the court, Elmer, J.; facts found and judgment rendered for the plaintiff for iiominal damages only, and appeal by him for alleged errors in the rulings and findings of the court.

Action by the payee against the maker to recover the amount of a promissory note, brought originally before a justice of the peace and thence by defendant’s appeal to the Court of Common Pleas in New Haven County and tried to the court, Hubbard, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court.

Action upon the so-called common counts, brought to the Superior Court in New Haven County and reserved by that court, George W. Wheeler, J., upon the plaintiff’s demurrer to a plea in abatement filed by'the receivers of the defendant, for the consideration and advice of this court. The defendant was a New York corporation organized under Chap. 122 of the Laws of 1851, and certain real estate was attached, as its property, on June 27th, 1899.

<p>Action for rent, brought to the Court of Common Pleas in New Haven County and tried to the jury before Hubbard, J.; verdict and judgment for the plaintiff for $200 damages, and appeal by the defendant for alleged errors in the rulings and charge of the court.</p> <p>The case is sufficiently stated in the opinion.</p>

Action to restrain the town of Norwalk from removing certain paupers to the plaintiff town, brought to the Superior Court in New Haven County and reserved by that court, Thayer, Jupon an agreed finding of facts, for the consideration and advice of this court. The case is fully stated in the opinion.

Action to restrain the defendant town and its selectmen: from proceeding to elect a school committee at a special town meeting warned for that purpose, brought to the Superior Court in New Haven County and reserved by that court, Thayer, J., upon a demurrer to the complaint, for the consideration and advice of this court.

Action to recover damages for personal injuries claimed to have been caused by the defendant’s neglect to repair a fire-escape, brought to the Superior Court in New Haven County and tried to the jury before Ralph, Wheeler, J.; verdict and judgment for the plaintiff for $1,000 damages, and appeal by the defendant for alleged errors in the rulings and charge of the court.

Action to restrain the defendant from cutting or trimming shade trees upon the highway in front of the plaintiff’s premises, brought to the Superior Court in Hartford County and reserved b}r that court, Robinson, J., upon demurrer to the answer, for the consideration and advice of this court.

Action to recover damages for injury to the plaintiff’s oyster-ground caused by the dumping of mud thereon, brought to the Court of Common Pleas in Fairfield County and heard in damages to the court, Curtis, J.; facts found and judgment rendered for the plaintiff for $637, and appeal by the defendant for alleged errors in the rulings of the court.

<p>Action to foreclose three mortgages, to have another mortgage declared null and void as to the plaintiff’s lien, and for other equitable relief, brought to the Superior Court in New Haven County and reserved by that court, George W. Wheeler, J., upon an agreed finding of facts, for the consideration and advice of this court.</p> <p>The complaint contains four counts. The first three ask for the foreclosure of three mortgages upon two pieces of land formerly owned by Fitzgibbons, which mortgages were given by him to the Derby Savings Bank and have been by it assigned to the plaintiff. The fourth alleges, in substance, that the plaintiff is now the owner of the equity of redemption in the land covered by said three mortgages; that said lands, and certain other lands of the wife of Fitzgibbons, are also covered by a certain mortgage made to said bank by Fitzgibbons and his wife, subsequent to said first three mortgages, which last mortgage is now owned by the Home Trust Company. The complaint asks (1) that this last mortgage be declared void as against the plaintiff; or (2) that the holder thereof shall collect the same out of the lands of the wife alone ; or (3) that the plaintiff may be allowed to pay the amount due on said mortgage and have the same assigned to it by the holder thereof.</p> <p>It is agreed that the plaintiff is entitled to a foreclosure of the three mortgages described in the first three counts, and the questions in the case arise solely upon the fourth count.</p> <p>The controlling facts in the case are in substance these: Fitzgibbons and his wife intermarried in 1893. He was a liquor dealer in Ansonia from 1882 to 1896. On the 30th day of January, 1895, he owned two pieces of land, called herein lots A and B. These lots were then subject to the three mortgages aforesaid. At this time his wife owned two pieces of land in her own name and right, called herein lots O and B. She also bad as her own, on deposit in said bank, |2,000. Prior to this time Fitzgibbons and his wife had contemplated the purchase of a piece of land called the Bridge Street lot, hereinafter called lot E, for the purpose of reducing the rental expenses of Patrick in his said business. The price of lot E was $4,500. In order to purchase lot E it became necessary to obtain a loan of $3,350, and the Derby Savings Bank was asked to make that loan. The bank refused to make it unless a mortgage was given to secure it, covering lots A, B, O, B and E, and unless the title to all of said lots should stand in the name of the wife alone. Accordingly, on the 30th day of January, 1895, Fitzgibbons caused his right and title in lots A and B to be conveyed to his wife, subject to said three mortgages; and subsequently lot E was purchased and the title thereto taken in her name alone. She thus held the legal -title to lots A, B, (7, B and E. After this, in November, 1895, Fitzgibbons and his wife executed and delivered to the Derby Savings Bank their joint and several note for the sum of $3,350, and to secure it gave to the bank a mortgage, executed by both, covering all of said lots. The wife then drew out the $2,000 she had in the bank, and used it, with the $3,350 loaned by the bank, in paying the purchase price of lot E, and in altering over and improving the property so purchased.</p> <p>At the time Fitzgibbons conveyed his land to his wife as aforesaid, the value of his equity therein was $3,100. Subsequently said conveyance was by this court held to be void as against the plaintiff, for the reasons stated in the case of Quinnipiae Brewing Oo. v. Eitzgibbons, 71 Conn. 80.</p> <p>In January, 1896, Fitzgibbons made an assignment in insolvency under the laws of this State, a trustee upon his estate was appointed, and such proceedings were therein and thereafter had that the final account of said trustee was accepted in May, 1896. Said trustee neglected and refused to take, any steps to set aside the conveyance aforesaid from Fitzgibbons to his wife.</p> <p>In June, 1896, the plaintiff, a creditor of Fitzgibbons, attached lots A and B, in certain suits against him, and subsequently recovered judgment therein, and filed judgment liens upon said judgments against lots A and B. After-wards the plaintiff brought suit against Fitzgibbons and his wife to foreclose said liens, and obtained judgment of foreclosure therein against them both in November, 1898, and they failing to redeem, the title to lots A. and B, as to them, became absolute in the plaintiff, who duly filed a certificate of that fact as required by law. Just prior to the judgment of foreclosure aforesaid, the plaintiff requested the Derby Savings Bank, then the holder of said mortgage for $3,350, to sell and assign said mortgage and note secured thereby, to the plaintiff, upon payment of the amount due thereon, but, at the request of Fitzgibbons and his wife, the bank refused to do so. Subsequently they requested the bank to sell and assign said note and mortgage to William S. Downs, and this was done, and then Downs sold and assigned the same to the Home Trust Company, the present holder thereof.'</p> <p>• In making the note and mortgage for $3,350, Fitzgibbons and his wife and the bank acted in entire good faith and without any fraudulent intent or purpose whatsoever; as did the bank, Downs, and the Home Trust Company, in making the purchase and sale of said note and mortgage.</p> <p>It is agreed that lots C and D are now worth $2,000 and that lot E is worth $5,000.</p> <p>In conveying his property to his wife as aforesaid, Fitzgibbons had no corrupt motive or fraudulent intent to cheat or defraud his creditors, present or future, but acted in good faith and upon the advice of the treasurer of the Savings Bank, who refused to make the loan unless said conveyance was made.</p> <p>The main purpose of the wife in purchasing lot E was to aid her husband in his business, by providing a suitable place there for a dwelling-house for both, and thereby save $600 a year which he had been paying for rent.</p> <p>The Derby Savings Bank had full knowledge of all the circumstances under which its mortgage was made, and the Home Trust Company is chargeable with all the knowledge the bank had of such circumstances, at the time it took the assignment of said mortgage.</p>

<p>Action to recover damages for personal injuries claimed to have been caused by a defective highway, brought to the Superior Court in New London County and tried to the jury before Thayer, J.; verdict and judgment for the plaintiff for $875, and appeal by the defendant for alleged errors in the rulings and charge of the court.</p> <p>The complaint alleged that the defect in the highway consisted in “ a large block of stone nearly two feet long, about one foot wide and about ten inches high, then lying and being in the traveled way on the sidewalk and street, and projecting about eight inches above the surface of the same.” The answer denied the material allegations of the complaint.</p> <p>The finding sets forth the action of the court upon the trial, substantially as follows: It was proved and admitted that the stone which caused the accident was a white marble carriage-block resting upon the sidewalk within a few inches of the gutter in front of a dwelling-house, and was of the dimensions stated in the complaint; that there was a large tree standing in the sidewalk in line with this stone at each end of it, and distant therefrom, at one end four feet, and at the other end fifteen feet; that said sidewalk was on the south side of the street, there being no sidewalk on the north side; that the sidewalk at this point was smooth and level and its width between the stone and the fence was five feet four inches; that all the travel on foot through the street was over this south sidewalk, and that it was a much used walk.</p> <p>The plaintiff testified and offered other evidence tending to prove that the accident occurred in the evening, when it was quite dark, and the ground and the block covered with snow; that he was on the north side of the street carrying a basket of clothing, and crossed to the south side where the carriage-block was situated; that he stepped upon the block, slipped, stumbled and fell, and received the injuries complained of; that he was familiar with the place and had known for many years of the stone being there, but did not see it at the time or think of its being there.</p> <p>The plaintiff without objection offered witnesses who gave their opinion that the carriage-block rendered the highway unsafe, and the defendant offered witnesses who gave their opinions to the contrary.</p> <p>The statute required the plaintiff to give the defendant a written notice of the accident and a description of the alleged defect in the highway and injuries received, within sixty days after the date of injury, and, in case the defect claimed was caused by ice and snow remaining on the walk, to give such notice within fifteen days. The defendant gave no notice within fifteen days, but gave notice within sixty days, describing the alleged defect as consisting in the carriage-block.</p> <p>The defendant requested the court to charge as follows: “ In regard to whether a carriage-block set in its usual place on a highway renders the highway defective as far as the duty of the town is concerned, the law is that the town is not negligent by the fact of its allowing a carriage-block of usual size and construction to be maintained at the customary place on a sidewalk or street, provided the object does not project into the usual place of travel so as to be a hindrance to people traveling on the highway there, or a source of danger to persons passing along the usual line of travel while in the exercise of due care.”</p> <p>The court did not so charge, hut on this point did charge as follows: “ A carriage-block is not necessarily an obstruction to the sidewalk. As a matter of law you cannot say that it is an obstruction that renders the sidewalk or highway unsafe; nor, on the other hand, can you in all cases say that a carriage-block of that kind, or a block of the description that is claimed here to have been proved by the plaintiff, is not an obstruction. It would depend upon the circumstances of the case. The circumstances, the stone, the amount of travel, its situation or location, whether approximate or not to other objects, and all those circumstances are important to be considered in determining whether or not that block resting there, as it is admitted it was, constituted an obstruction to public travel, so that the highway was not reasonably safe for such travel under all the circumstances and facts in. evidence before you from which you can arrive at a conclusion on that point.”</p> <p>The defendant further asked the court to charge that if the injury was due wholly or partly to a fall caused by the plaintiff’s slipping on the snow, and he did not give notice thereof to the town within fifteen days, then he could not recover.</p> <p>The court did not charge as requested, but. on this point charged that if the plaintiff’s injuries were caused by a defect in the highway caused by snow or ice, he could not recover in this action, because he did not give the town notice of it.</p> <p>The defendant, to disprove the negligence imputed to it, asked one Spalding, its first selectman, the following question : “ State whether or not there is in the town, outside of the city limits, a general usage o£ these objects at the edge of the sidewalk, which are known as carriage-blocks ? ” Upon objection by the plaintiff the question was excluded, and the defendant duly excepted.</p> <p>The appeal assigns as error (1) the rejection of the testimony of Spalding; (2) the charge as to notice; and (3) the charge as to the duty of a town in the removal of carriage-blocks.</p>

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, brought to the Superior Court in New London County and heard in damages to the court, Thayer, J.; facts found and judgment rendered for the plaintiff for |1,500, and appeal by the defendant for alleged errors in the rulings and findings of the court.

Suit to determine the validity of a mortgage of real estate claimed to constitute a cloud upon the plaintiffs’ title, and for other equitable relief, 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 plaintiffs for alleged errors in the rulings of the court.

<p>The right to begin a civil action at any time, which has always existed in this State, is not to be destroyed by statutory implication. Chapter 196, §1, of the Public Acts of 1897, provides that civil actions brought to the Court of Common Pleas shall be made returnable on the first Tuesday of any month except July and August, “ provided that such return day shall not be more than six weeks after the commencement of the action.” Held that this proviso was not intended, and ought not to be construed, to prevent the institution, at any time, of a suit made returnable to the next return day of the court, merely because more than six weeks might intervene between the service and return of the action.</p> <p>In an action by a trustee in insolvency to recover the value of property transferred to and received by the defendant in violation of the insolvent law, it is immaterial whether the defendant had the property in his possession or under his control at the commencement of the action, and also whether the trustee had made a previous demand for its delivery ; the gist of the action is not a wrongful refusal to deliver on demand, but the injury caused by the statutory default or breach of duty.</p> <p>Evidence that the debtor had no property about a month after the alleged illegal transfer, is relevant as tending to prove his insolvency at the date of such transfer.</p>

; facts found and judgment rendered in favor of the applicant, and appeal by the county commissioners for alleged ■ errors in the rulings and findings of the court.

Action to recover damages for breach of covenant, brought to the Superior Court in New Haven County and 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 and findings of the court.

<p>Under a special enactment (10 Special Laws, pp. 225, 232) conferring the jurisdiction and powers of a justice of the peace in bastardy • proceedings upon the borough court of Wallingford, its deputy-judge may administer the oath required to be made to the com- ' plaint addressed to said court, and thereupon may sign and issue a warrant for the arrest of the accused.</p> <p>Chapter 187 of the Public Acts of 1899, limiting the time within which a cause may be placed on the jury docket, applies to bastardy proceedings as well as to other civil actions.</p>

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, brought to the Superior Court in New Haven County and heard in damages to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff for $3,000, and appeal by the defendant for alleged errors in the rulings of the court.

Action to recover the amount of a tax claimed to be due from the defendant upon shares of its stock owned by nonresident stockholders, brought to the Superior Court in Hartford County and tried to the court upon the plaintiff’s demurrer to the answer; the court, Borabaek, J., pro forma, sustained the demurrer and rendered judgment for the plaintiff, and the defendant appealed for alleged errors in the rulings of the court.

Application's in the nature of appeals from the doings of the board of relief of the town and city of Hartford, brought to the Superior Court in Hartford County and reserved by that court, Robinson, J., upon demurrers to the complaints, for the consideration and advice of this court.

Applications in the nature of appeals from the doings of the board of relief of the town of Union, brought to the Superior Court for Tolland County, a.nd heard together by the court, Ralph Wheeler, J., on an agreed statement of facts, and judgment rendered in each case for the town, from which the taxpayers appealed for alleged errors in the rulings of the court. The Quinebaug Reservoir Company is a Massachusetts corporation.

<p>Action for an injunction and for damages on account of injuries to the plaintiff’s premises claimed to have been caused by the wrongful raising and lowering of the waters of a certain pond, brought to the Superior Court in Litchfield County and tried to the court, Shumway, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings and findings of the court.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>A testator wbo died in 1886 provided that all of his property, subject to a life annuity to his widow, should be held in trust until January 1st, 1900, when it was to be distributed as directed by subsequent clauses of his will. One of these clauses (10) gave to L “ and his children, in equal portions, two fifths of all of my estate after the closing of the trust, to have and to hold unto them and their heirs forever. But if one or more of the said four children of L shall have died leaving issue of his or her body, said issue shall receive the same portion that his or her parent would be entitled to if living.” At the testator’s death L had four children, one of whom, N, died in 1892, leaving children. In 1895 L remarried and had another child, born in March, 1897, who is still living. L died in July, 1897, intestate, leaving his widow and said five children. In a suit to construe the will it was held:—</p> <p>1. That no part of the property was intestate.</p> <p>2. That upon the testator’s death the two fifths in question vested in L and his four children, equally, as tenants in common; and that they took as a class which opened to let in the child born afterwards but before the class gift took effect in point of enjoyment.</p> <p>3. That by the “ issue ” of a deceased legatee, the testator meant his or her children, under which provision N’s children took her share.</p> <p>4. That L’s widow had no interest in any of the property of the testator, although she would be entitled to her statutory share in so much of it as might thereafter be distributed to and become part of her deceased husband’s estate.</p> <p>A legacy to a class embraces all those who fall within it at the time the legacy takes effect in point of enjoyment.</p>

<p>Action to recover damages for personal injuries claimed to have been caused by a defective highway, brought to the Superior Court in Litchfield County and heard on demurrer to the complaint for the alleged insufficiency of the notice; the court, Robinson, J., sustained the demurrer and rendered judgment for the defendant, and the plaintiff appealed for alleged errors in the rulings of the court.</p> <p>Paragraphs 1, 4 and 5 of the complaint are as follows: “ 1. On June 23d, 1897, and for a long time prior thereto, there was a dangerous defect in the public highway or road in said town of Cornwall, known as the Cook Road, at a point in said highway or road about two rods northerly of the ruins of an old house, known as the Cook house, which said defect consisted of dangerous rocks from which the earth had been washed and worn away, and deep, dangerous' crevices and holes in said rocks, said dangerous condition being caused by the washing and wearing of the earth from said highway. Said highway or road was further defective at said point by reason of bushes and grass being allowed to grow up and overhang the traveled part of the same in such a manner as to hide the dangerous and defective condition of said highway from travel thereon, and for all of said reasons said road was unsafe. 4. On said day the plaintiff, with due care, was driving a horse and wagon or cart along said highway or road, and by reason of the defective condition of said highway or road, as set forth and described in paragraph one, the wheel of the wagon or cart in which the plaintiff was then riding while traveling over said point in said highway or road, ran into and was caught and held fast in the crevices or holes in the rocks in said highway at said point, and by reason of the same the wheel to her wagon or cart in which she was then riding was broken and she was thrown violently out upon the ground or rocks at or near the said point, all of which while she was in the exercise of due care. 5. In consequence of said defective road and of the catching and holding fast of the wheel of said wagon or cart in the crevices or holes of the rocks at said point as aforesaid, and of the breaking of said wheel and being violently thrown from said wagon or cart, the plaintiff was severely and permanently injured in her person.”</p> <p>The statutory notice given by plaintiff to defendant, and set forth in the complaint, is as follows: —</p> <p>“ Cornwall Bridge, Conn., June 24,1897.</p> <p>“ To the Selectmen of Town of Cornwall, Gentlemen :</p> <p>“ I hereby notify you that myself and a friend, Miss Mary McCormick of Bridgeport, while driving on the road between the Warren Turnpike and Richard Brophy’s house, I think the road is familiarly called the ‘ Cook Road,’ near the ruin of an old house, we were thrown out of our wagon on that ledge of rocks in the road. Our wagon was broken and ourselves very much injured. As it is beyond dispute that the condition of the road was the cause of the accident, I shall hold the town of Cornwall responsible for the injuries done myself and wagon. That whole road is in a terrible condition. I should judge there has not been a spoonful of dirt put on it in more than a year. The bushes and grass hide holes, rocks, and other dangers, so that a driver cannot see danger until he meets it.</p> <p>“We were several times nearly thrown out before we came to those rocks, so were driving very slowly and carefully when the accident occurred, otherwise we should have been killed. I was thrown out headlong and struck on the rocks, hurting my right shoulder, neck, and back. Miss McCormick hurt her hip and wrenched her ankle, which at present is swollen to twice its usual size. In fact, we can neither of us tell exactly yet the extent of our injuries, as the accident occurred yesterday, June 23, 1897.</p> <p>“Very respectfully,</p> <p>“ Julia C. Breen.”</p> <p>The defendant demurred to the complaint upon the grounds that the notice did not contain a sufficient description of the cause of the injury, and did not state the same cause as that alleged in paragraphs 1, 4 and 5 of the complaint.</p>

Plea in abatement to an appeal taken by the plaintiffs from a judgment rendered by the Superior Court in Hartford County, Prentice, J., in favor of the defendant. The appellee also filed a motion to erase. The facts are sufficiently set forth in the opinion.

<p>Action to foreclose two mortgages on one piece of land, brought to the Court of Common Pleas in Hartford County and tried to the court, Case, J.; facts found and judgment rendered for the plaintiff establishing the validity and precedence of his first mortgage, but giving to a mechanic’s lien claimed by the defendant King precedence over the plaintiff’s second mortgage, and appeal by the plaintiff for alleged errors in the rulings of the court.</p> <p>These facts appeared from the finding: The condition of the first mortgage recited a note of the grantor in favor of the grantee for $150, adding: “ And whereas I may become further indebted to the said grantee as evidenced by other promissory notes hereafter given, now, therefore, if said note or notes shall be well and truly paid according to its or their tenor, then this deed shall be void.” When the deed was given the grantee orally promised to lend the mortgagor, later, $150 more. A few weeks later she lent him on different days $450, believing such loans to be secured by the mortgage. Within a year she lent him $200 more, and thereupon took his note for all the sums thus lent after the first mortgage, and a new mortgage to secure it.</p> <p>A month before this last loan, and several months after the loans amounting to $450, King furnished materials and rendered services, under a contract with the mortgagor, in the construction of an artesian well on the mortgaged premises. It was sunk close to the back door of the house, for the exclusive use of its occupants for domestic purposes, and was the only source of water supply on the premises or within a quarter of a mile of them. It was not physically connected with the house. The proper steps were taken by King to obtain a mechanic’s lien for his materials and services. The premises were worth less than the amount of the second mortgage. The mortgagee did not know of King’s employment until the well had been constructed, and he had no knowledge of any transaction between her and the mortgagor other than as appeared by the first mortgage.</p>

Action to recover a balance claimed to be due for a piano sold by the plaintiff, 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, Case, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court.

, upon the defendant’s motion to quash the alternative writ; the court granted the motion and dismissed the writ, and the plaintiff appealed for alleged errors in the rulings of the court. The alternative writ was as follows: — “1.

Action to recover damages for personal injuries claimed to have been caused by the negligence of the defendant’s servant while acting within the scope of bis duty, brought to the Superior Court in Hartford County and heard in damages to the court, Prentice, J.; facts found and judgment rendered for the plaintiff for nominal damages only, and appeal by her for alleged errors in the rulings and findings of the . court. The ease is sufficiently stated in the opinion.

Davis, deceased, in disallowing certain claims presented by the appellant, taken to the Superior Court in Middlesex County and tried to the court, Thayer, J.; facts found and judgment rendered in favor of the claimant, and appeal by the administrator for alleged errors in the findings and rulings of the court. The statement of claim filed in the Superior Court alleged that said Davis was an indorser upon two described notes.

Action to. recover special damages to the plaintiff’s- land claimed to have been caused by a change of the grade of a highway, brought to the Superior Court in New London County and tried to the jury before Elmer, J.; verdict and judgment for the plaintiff for $630 damages, and appeal by the defendant for alleged errors in the rulings and charge of the court. The complaint in this case is in two counts.

Action to recover for the cold storage of poultry, brought to the Court of Common Pleas in New London County and tried to the court, Noyes, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendant for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Action for damages for a trespass to lands adjoining a highway in Ansonia and for an injunction against its repetítion, brought to the Superior Court in New Haven County where a demurrer for misjoinder of causes of action was sustained (Prentice, J.~), and afterwards the claim for legal relief was tried to the jury before Ralph Wheeler, J.; verdict and judgment for the plaintiff for $175 damages, and appeal by the defendants for alleged errors in the rulings and charge of…

<p>By filing an answer and proceeding to trial the defendant waives all formal defects in the complaint, including an unnecessary and improper division of its allegations into two counts.</p> <p>In an action for fraud in exchanging property, the plaintiff may show that the defendant’s offer to trade back was not made in good faith but was a mere subterfuge.</p> <p>Fraudulent misrepresentations as to the location of the boundaries of land, made by the vendor to an intending purchaser while inspecting the premises, are not rendered inadmissible because the land thus indicated as covered by the sale was not in fact within the boundaries of the land conveyed, nor within the lines of a survey which the plaintiff had introduced in evidence.</p> <p>Evidence of the appearance, character, and value of the land which was falsely represented as part of the tract to be sold, is relevant upon the question of damage and fraudulent intent.</p> <p>In the present case the complaint failed to allege what the value of the land would have been if the representations had been true, and what the land was in fact worth at the time of the sale. Held that after a trial and verdict upon a denial of the averments of the complaint, they must be regarded as sufficient, and, if defective, as having been waived.</p> <p>Representations as to the acreage of a tract of land offered for sale stand on a somewhat different ground from naked representations of value. If made positively, as an assertion of an existing fact, and if believed and acted upon, they may constitute an actionable fraud, although the vendee might have ascertained their falsity.</p> <p>Upon the farm in question there was a mortgage for $1,000 which the plaintiff assumed and agreed to pay as part of the purchase price, and some evidence was offered tending to show that the farm was worth only $800. The court instructed the jury that in applying the general rule of damage, which had been given them, they would reach a correct result if they ignored the mortgage altogether, and simply ascertained the difference between the value of the land the plaintiff would have received had it been as represented, and the actual value of that conveyed to her by the deed, and to this amount added interest at six per cent. Held that this was a practical suggestion consistent with the general rule and afforded the defendant no cause of complaint.</p> <p>Whatever may be its weight, evidence of the value of the property given in exchange by a plaintiff who claims to have been defrauded, is relevant upon tbe question as to what would have been the value of the property which he was to receive in return, had it been as represented.</p>

Actions to recover balances claimed to be due upon certain shares of the capital stock of an insolvent corporation in the hands of a receiver, brought to the Superior Court in New Haven County where demurrers to the complaints were overruled (Roraback, J.) and, after motions to substitute the Western Realty Company as party plaintiff had been granted (Elmer, J”.), the causes were tried to the jury before Ralph Wheeler, J.; verdict and judgment for the plaintiff in each case,…

Action to recover for services rendered as an attorney at law, brought to the Court of Common Pleas in New Haven County and tried to the court, Hubbard, J., upon a demurrer to the complaint; the court sustained the demurrer and rendered judgment for the defendant, and the plaintiff appealed for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Action to obtain a new trial, for an injunction and other equitable relief, brought to the Superior Court in Hew Haven County and tried to the court, Thayer, J.; facts found and judgment rendered for the defendants, and appeal by certain of the plaintiffs for alleged errors in the findings and, rulings of the court. The case is sufficiently stated in the opinion.

Ineobmation for the violation of a city ordinance concerning the sale of milk, brought to the City Court of Waterbury and thence by the defendant’s appeal to the District Court of Waterbury and tried to the court, Cowell, J!, upon the defendant’s demurrer to the information; the court sustained the demurrer and discharged the accused, and the State appealed 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 New Haven County and heard in damages to the court, George W. Wheeler, J.; facts found and •judgment rendered for the plaintiff for $4,000 damages, and appeal by the defendant for alleged errors in the rulings and findings of the court. The case is sufficiently stated in the opinion.

Action to set aside a judgment rendered for the plaintiff for nominal damages only, for a new trial, or for other equitable relief, brought to the Superior Court in New Haven County and reserved by that court, Robinson, J., upon demurrer to the complaint, for the consideration and advice of this court. The plaintiff brought an action to the Superior Court for a personal injury, in which final judgment was rendered for the defendant upon a demurrer to the complaint.

Actions to recover damages for injury to premises claimed to have been caused by negligence of the defendant in the construction and use of its sewerage system, brought to the District Court of Waterbury and thence by the defendant’s appeal to the Superior Court in New Haven County and reserved by that court, Ralph Wheeler., Jupon a finding of facts, for the consideration and advice of this court.

Action to recover damages for personal injury claimed to have been caused by the defendant’s negligence, brought to the Superior Court in New Haven County, where a demurrer to the complaint was overruled (Shumway, J.) and the case was afterwards heard in damages to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff for §700 damages, and appeal by the defendant for alleged errors in the rulings and findings of the court.

Action to recover damages for personal injuries resulting from a collision claimed to have been caused by the defendants’ negligence, brought to the Superior Court in New Haven County and heard in damages to the court, Thayer, J. ; facts found and judgment rendered for the plaintiff for §500 damages, and appeal by the Manufacturers Railroad Company only, for alleged errors in the rulings of the court.

<p>The liabilities incurred under a contract of suretyship are not to be extended by implication beyond its precise terms and scope.</p> <p>The approval of a probate bond, if made subsequent to the day when it was filed, relates back to that day.</p> <p>A probate bond, after reciting that A had been duly appointed executor of B’s will and trustee of a certain fund therein created, and had accepted said trust, provided that it should be void if A should' “ faithfully discharge the duties of his said appointment according to law.” A' had previously been acting as executor, but at the time of filing such bond rendered an account in which he charged himself with certain notes and deposits as “trustee. ” This bond was indorsed by the judge of probate : “Estate of B. Probate trustee bond. Accepted March 10, 1894” Held: —</p> <p>1 That under our informal probate practice this indorsement must be deemed equivalent to a duly recorded decree that the bond was approved as a trustee bond.</p> <p>2. That as such it bound the sureties for A’s fidelity as a trustee only from and after the date on which it was filed in court.</p> <p>The failure to have a trust fund forthcoming upon the death of the testamentary trustee, so that it can be accounted for and turned over to his successor, is in itself a breach of the trustee’s bond for which his sureties are answerable.</p> <p>Under such circumstances it is immaterial that the trustee was also the sole executor of the will, and had not filed his final administration account nor obtained any order for the transfer of the fund to himself as trustee.</p> <p>A testator directed that his real estate should be sold at an early day, at the discretion of his executor. Held that this empowered the executor to make the sale, no other person being named for that purpose.</p> <p>An assignment of error alleging that the trial court erred in overruling particular claims of law as enumerated and set forth in a certain paragraph of the finding, is sufficiently specific.</p> <p>An appeal to this court transfers the cause here for all purposes incident to the full exercise of appellate jurisdiction.</p> <p>A trial judge in making a finding for the purposes of an appeal acts as an historian, and in a clerical rather than a judicial capacity.</p> <p>This court may, upon motion, allow a necessary correction of the record, where the time inteiwening before the opening of the term to which the appeal is taken is insufficient to enable the moving party to follow the procedure pointed out by statute.</p>

Action upon an officer’s receipt for property attached, brought to the Court of Common Pleas in Fairfield County and tried to the court, Curtis, J.; facts found and judgment rendered for the plaintiff for $576, and appeal by the defendant Wilson for alleged errors in the rulings of the court.

Action to foreclose a mechanic's lien, brought to the Superior Court in Fairfield County and tried to the court, Shumway, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendants for alleged errors in the rulings of. the court.

Action for the' specific performance of an agreement respecting real estate, for an injunction, and for damages, brought to the Superior Court in Fairfield County and tried to the court, Ghumway, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court.

Action to recover damages for breach of contract and for fraud in an exchange of horses, brought originally 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, Qurtis, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court.

<p>Appeal from an order and decree of the Court of Probate for the district of Bridgeport, approving and admitting to probate a certain instrument in •writing as the last will and testament of Delia E. Hobbes, deceased, taken to the Superior Court in Fairfield County and tried to the jury before BorabacJc, J.; verdict and judgment sustaining the will, and appeal by the contestants for alleged errors in the charge of the court.</p> <p>The appellant George E. Hobbes was the divorced husband of Delia E. Hobbes, the testatrix, and the other appellants are his two minor children by a later and deceased wife.</p> <p>The appellees are Mary A. Cook, sister of the testatrix, and James Cook the husband of Mary, Ellen Doran, the mother, and Albert Doran, the nephew, of the testatrix.</p> <p>The testatrix died September 19th, 1899, after an illness of several months. On September 8th, 1889, she executed a will by which she left #500 to her mother, Ellen Doran, devised her real estate to the two children of George E. Hobbes, and gave the residue of her estate to said' Hobbes, whom she appointed executor without bonds. On the 12th of the same month she executed another will, by which she gave #500 to George E. Hobbes in trust for his two children, directed her executor to sell all her real estate and hold the proceeds for her mother, Ellen Doran, during her life, and then to pay two thirds of the same to her sister, Mary A. Cook, and one third to her nephew, Albert Doran, and named her brother-in-law, James Cook, as her executor. This will is the one in contest. '</p> <p>The appellants contest the will because: (1) it was not legally executed; (2) the testatrix did not possess testamentary capacity; and (3) it was obtained by undue influence exercised upon the testatrix by Ellen Doran, Mary Cook, Mrs. Charles Patterson, Mrs. William H. Lewis and Emily Burgess.</p> <p>Mrs. Patterson and Mrs. Lewis were witnesses to the contested will.</p> <p>Upon the trial the appellants offered evidence to prove, as bearing on the question of undue influence, and claimed to have proved that upon September 10th, 1899, and until her death, the testatrix was in the last stages of Bright’s disease, which rendered her mind stupid, feeble and incapable of resisting pressure of any kind, so that she had not courage to resist importunity or threats, and for the sake of peace and escaping distress of mind would yield her judgment and wishes to moral command or pressure; that her mother, Ellen Doran, and her only sister, Mary Cook, were her nurses, and she was dependent on them for her care and comfort, and greatly wished their society; that on September 7th she was told by her physician she had not long to live, and should attend at once to any necessary business; that the next day she sent for an attorney, and in the presence of her mother dictated and executed her will in favor of George E. Hobbes; that on September 10th her mother thought her dying and sent for her minister, who found her apparently under great distress of mind, the cause of which she did not explain; that just before the minister was sent for Mary Cook went to her bedside and told her in a very angry manner that she was through with her, that she had willed her property to Hobbes, and that the Hobbes could take care of her; that the testatrix was greatly affected by this and began to cry, and on the morning of September 11th sent for her sister, and was asking for her all day the 12th, before the will was drawn; that Mrs. Cook informed the messenger and told others that she would not go to her sister, saying: “ She has made her will and now let her stand by it; ” that Mrs. Cook did not return to her sister until she learned that an attorney had been sent for to draw a new will; that she reached her sister shortly before the. will was drawn, resumed friendly relations with her, and that the testatrix said, “Why did you stay away so for ? There may be a surprise for you; ” that this conduct of Mrs. Cook was designed to and did operate on the testatrix so that her judgment was overcome, and under the pressure thereby exercised she was unduly influenced to make the will of September 12th; that while George Hobbes was husband of the testatrix he acquired the real estate mentioned in the two wills, wholly with his own money, and gave it to his wife; that they lived together 20 years, when (in 1892) the testatrix obtained a divorce on the ground of adultery; that Hobbes married again the following year, and, after the birth of the two children mentioned, his second wife died; that during his marriage with the testatrix she was unduly jealous, and this jealously drove him to drink and to illicit intercourse with other women, but in all his quarrels he had never ill-treated her; that between the time of the divorce and his second marriage his relations with the testatrix were friendly and there was talk of a remarriage, and during the time of the second marriage these friendly relations continued, and after the death of the second wife his relations with the testatrix became very friendly and it was their intention to remarry, but this was prevented by her illness ; that the testatrix was extremely fond of Hobbes’ children, and had repeatedly declared to Mr. Hobbes her intention to leave the house and lot to his children, and sent for him when she learned on September 7th that she had not long to live ; that the acts of Mrs. Burgess, Mrs. Patterson, Mrs. Cook, Mrs. Lewis and Mrs. Doran, between September 10th and 12th, and at the time the will was drawn, were in pursuance of a combination to influence the testatrix, and were intended to and did intimidate and influence the testatrix and so obtain from ber the will of September 12th; that after that will was executed the testatrix was closely guarded by her mother and sister, Mr. Hobbes was not allowed to see her alone, and on September 16th she was taken by James Cook to his house and there kept closely guarded until she died.</p> <p>The appellees offered evidence to prove and claimed to have proved that important portions of the appellants’ testimony were untrue; that during Hobbes’ marriage with the testatrix he treated her badly, lived in open adultery with other women, and at times beat her; that the house and lot mentioned in the wills was not obtained by Hobbes’ money, but mainly with money of the testatrix’s relatives; that while the relations of the testatrix with Hobbes after the divorce were friendly, she had no interest in him and had repeatedly declared her intention not to make a will in his favor, and had declared her intention of leaving the property to her mother; that after she became ill Hobbes began to show a great interest in her, his attentions increasing as she grew worse, and that the will of September 8th was obtained by undue influence exerted by Hobbes; that while it was true that Mrs. Cook was angry because the testatrix had made a will without remembering her, and had remained away from her for two days on account of this feeling, the other claims of the appellants were not true; that there was no combination between Mrs. Cook and the other persons named; that the making of the will of September 12th was the result of the independent and freely expressed wish of the testatrix; that at the time she made the will she was of sound mind, knew what she was doing, did it understandingly, and in making the will carried into effect her own will and intention and was free from all undue influence.</p> <p>The charge of the court was given in view of this contradictory condition of evidence and claims. The judge incorporated in his charge all the requests made the appellants. He also charged in two particulars as requested by the appellees, and those requests are fully stated in the opinion.</p> <p>The appellants’ appeal assigns error (1) in charging in accordance with these requests of the appellees; (2) in charging upon the subject of undue influence as the court did charge; (3) because said charge, taken as a whole, was not adapted to the issue, and was not a sufficient guide to the jury in view of the facts claimed by the appellants to have been proved, in that the court, by charging as requested by the appellees, so qualified its charge as given in conforming with the appellants’ request, that from these portions of the charge taken together and from the charge taken as a whole, the jury must have understood an erroneous direction in regard to the legal proof of undue influence; and (4) because the court failed to direct the attention of the jury specifically to the facts claimed by the appellants as proved, sufficiently to enable the jury to apply intelligently the charge of the court upon the subject of undue influence to such facts.</p>

Action to recover $1,100 claimed to have been loaned to the defendant on two occasions through the agency of his wife, brought to the Superior Court in New Haven County and tried to the court, Gceorge W. Wheeler, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court.

Appeal by each party from the taxation of costs upon the judgment entered up in this court in favor of the defendant, as heretofore directed (ante, p. 118). The costs taxed by the clerk were as follows: entry fee, $8; judgment fee, $10 ; recording judgment file, $1; attorney fee for services, $20; printing briefs, $15; total, $49.

<p>A complaint by the receiver of a corporation alleged that on a certain date the defendant was, and ever since continued to be, the owner upon its books of fifty-one shares of its capital stock, of the par value of $100 each; that $2,025 remained unpaid on his shares and that although the directors had called in this sum the defendant had paid but $1,150 of it, and after demand by the receiver still refused to pay the balance. Held that the complaint was not demurrable for its omission to allege that the defendant had ever subscribed for the stock, or had become responsible for it in any way to the corporation, or that the stock call was legally made; as these were matters of defense which it was not necessary to anticipate in the complaint.</p> <p>While a corporation cannot, as against its creditors, release a stockholder from his liability to pay the full value of his shares, it nevertheless has power to compromise a bonajicte dispute as to the amount that is due from him upon his stock, and such compromise agreement, when executed, is a valid defense not only against the corporation but its creditors as well.</p>

Action to recover a balance claimed to be due on certain shares of the capital stock of a corporation in the hands of a receiver, brought to the Superior Court in New Haven County and tried to the court upon the plaintiff’s demurrer to the answer; the court, Thayer, J., sustained the demurrer and thereafter rendered judgment for the plaintiff, and the defendant appealed for alleged errors in the rulings of the court.

Action in the nature of trespass qu. cl. fr., claiming the reformation of a deed, an injunction, and damages, brought to the Superior Court in New Haven County where the issues in equity were first tried to the court, Greorge W. Wheeler, J., and judgment was rendered for the defendant.

Action to set aside a decree of divorce upon the ground that it had been procured by fraud, brought to the Superior Court in Fairfield County and tried to the court upon the plaintiffs’ demurrer to a plea to the jurisdiction; the court, Rorabaah, J., overruled the demurrer, sustained the plea and rendered judgment for the defendant, and the plaintiffs appealed for alleged errors in the rulings of the court.

Samuel 0. Prentice, a judge of the Superior Court, upon demurrer to the complaint; the judge sustained the demurrer, held the special act to be unconstitutional, and rendered judgment for the defendants, and the plaintiffs appealed for alleged errors in the rulings of the judge.

Samuel 0. Prentice, a judge of the Superior Court, and reserved by Mm, upon demurrer to the application, for tbe consideration and advice of this court. The application stated these facts: Power to locate a branch railroad in East Granby, upon a route covering the land of the defendant, was given to the plaintiff by an amendment to its charter in 1887.

Action for the cancellation of all stock subscriptions to the defendant company, for an injunction, and for other equitable relief, brought to the Superior Court in Hartford County where a demurrer to certain portions of the answer was sustained, and judgment was afterwards rendered (Prentice, J.') for the plaintiffs, upon other averments of the complaint, which were admitted by the answer, from which the defendants appealed for alleged errors in the rulings of the court.

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

Action to restrain the defendant from discharging rain and surface water from his house and land upon the adjoining premises of the plaintiff, and for damages, brought to the Superior Court in New Haven County and tried to the jury before Thayer, J.; verdict and judgment for the plaintiff, and appeal by the defendant for alleged errors in the rulings and charge of the court. The fourth, fifth and sixth paragraphs of the complaint are as follows: — “4.

<p>Where both distance calls in a deed cannot be satisfied, the one which is supported by a well-defined monument, as for instance the adjoining tract of land, will prevail over the other which disregards such monument.</p> <p>As a means of identifying the land bought, evidence of the actual survey, and the surveyor’s testimony as to how the boundaries fitted the ground, is admissible; also a map of the premises which the ■ parties had examined prior to their purchase.</p> <p>An ambiguity in a deed which is disclosed by parol may be removed by parol.</p> <p>Where a counterclaim is pleaded as a part of the answer and judgment is rendered for the defendant upon other grounds, it is not necessary to make any special reference to it in the judgment file.</p> <p>In the present case the parties, who owned adjoining lots, were at issue as to the position of the dividing line. Held that evidence was admissible to prove that the defendant conveyed to the plaintiff a strip of land twelve feet wide in settlement of that controversy, and that he afterwards staked out and built a fence upon a line which the plaintiff accepted as correctly marking the boundary of her lot, as fixed by that conveyance.</p> <p>The admission of incompetent evidence is a harmless error where the other evidence.conclusively shows that the appellant had no case.</p>

<p>Mandamus will not lie to control the judgment of a municipal board in a controversy in which the legal right of the relator is not manifest and clear.</p> <p>The plaintiff sought to compel the board of building commissioners of Bridgeport to issue a permit to her to build in front of or beyond a building line which had existed for ten years or more with the acquiescence of all parties interested, claiming that the proceedings of the municipal authorities establishing such line were defective and void. Held that under these circumstances her right to a permit was open to grave doubt, and that for this reason a peremptory writ of mandamus ought not to issue.</p>

Action for an injunction, brought to the Court of Common Pleas in New Haven County where the defendant filed a plea in abatement for want of a recognizance for costs, to which the plaintiff demurred; the court, Hubbard, J., overruled the demurrer, sustained the plea and rendered judgment for the defendant, and the plaintiff appealed for alleged errors in the rulings of the court.

Action in the nature of an appeal from the doings of the hoard of relief of the city of New Haven, in refusing to reduce the assessors’ valuation of the plaintiff’s real estate, brought to the Superior Court in New Haven County and tried to the court, Robinson, J.; facts found and judgment rendered in favor of the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court.

Action of replevin to recover the possession of certain lumber, brought to the Superior Court in New Haven County and tried to the jury before Thayer, J.; verdict and judgment for the defendant, and appeal by the plaintiff for alleged errors in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Action to recover the purchase price of a rotary polishing machine, brought to the District Court of Waterbury and tried to the court, Cowell, J.; facts found and judgment rendered for the plaintiff for $350, and appeal by the defendant for alleged errors in the rulings of the court.

<p>Action to restrain the defendants from levying an execution issued by a justice of the peace, brought to the Court of Common Pleas in Hew Haven County where the plaintiffs’ demurrer to the defendants’ plea in abatement was sustained (,Studley, J,.) and the cause was afterwards tried to the court, Subbard, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendants for alleged errors in the rulings and findings of the court.</p> <p>The plaintiffs were pawnbrokers and dealers in second-hand goods. The defendant J. Peter Dejon was a deputy-sheriff, and the Metropolis Manufacturing Co. was a corporation engaged in selling rugs and other goods by absolute sale and on the instalment plan, through agents, and employed a large number of agents in its business. Among these agents was one Howard C. Payne, who on February 7th, 1898, while working from the team of the defendant corporation, and under the immediate charge of its foreman, sold and delivered to the plaintiffs for $1.40 two rugs, and received payment therefor. Said rugs cost the Company $5, and had never been in use, but had the appearance of wear from exposure and handling. Four days later the Company sent one of its employees with said Payne to the plaintiffs to demand the rugs as its property. This employee told the plaintiffs that the agent Payne had sold the rugs too cheap. The plaintiffs replied that if so the Company could have them back for what they, the plaintiffs, had paid for them. The employee then left, saying he would return and take them. Subsequently the Company made written demand for the rugs, and, on refusal of plaintiffs to deliver them except by way of the trade back, brought an action for conversion before a justice of the peace. The Levys appeared and defended, and the case was adjourned from time to time until April 14th, 1899, when the parties were heard upon a demurrer by the corporation to a plea in abatement filed by the Levys. The justice notified the parties that when he had reached his decision on the demurrer he would notify counsel what it was, and would then consult them as to fixing a time for trial. After the justice had reached his decision on the demurrer, he fixed April 22d as the day for trial on the merits. Notice of the day of trial was received by the attorney for the corporation, but no notice was ever given the Levys, or either of them, or their attorney, and neither the Levys nor their attorney knew there was to be a hearing of said cause on said day. The corporation appeared before the justice on April 22d, and took judgment against the Levys by default, and the justice issued execution and delivered it to the present defendant Dejon for service. The first knowledge the Levys had of such hearing was when the officer made demand on the execution. The Levys then made demand on the justice to reopen the judgment and recall the execution, which was refused; and thereupon they brought this action, claiming an injunction.</p> <p>The present complaint sets out the facts as to the justice judgment, and alleges that the plaintiffs have a sufficient defense to that action.</p> <p>The defendant corporation filed a plea in abatement to the writ, to which the plaintiffs demurred. This demurrer was sustained. The answer of the corporation admits all the allegations of the complaint, except the allegations that the justice had agreed to consult the attorneys in fixing a day for trial on the merits, that the Levys had no notice of the time fixed by the justice, and that the Levys had a sufficient defense to the action before the justice, which allegations were denied ; and further alleges that a notice of the day fixed for trial by the justice was sent by mail to the attorney for the Levys, and some other matter which was expunged by order of court.</p> <p>The court found the issues for the plaintiffs and issued an injunction as claimed.</p> <p>At request of defendants the court ('JSubhard, J.) made a finding stating the facts on which the judgment was based, and also the subordinate facts from which the ultimate conclusions of fact were drawn, and stating the action of the court in ruling on evidence and on claims of law made on the trial.</p> <p>The appeal assigns error in sustaining the demurrer to the plea in abatement; in expunging portions of the answer; in rendering judgment on a complaint insufficient to support it; in reaching the conclusions of fact from the subordinate facts found; in overruling claims of law made on the trial, and in rejecting the testimony of Caleb M. Morse; and claims a correction in the finding of facts.</p>

Action of scire facias against a garnishee, brought originally before a justice of the peace and thence by the defendant’s appeal to the Court of Common Pleas in New Haven County and tried to the court, Studley, J., upon the plaintiff’s demurrer to the defendant’s answer; the court sustained the demurrer and afterwards rendered judgment for the plaintiff, and the defendant appealed for alleged error of the court in sustaining the demurrer.

<p>An indorsement upon a savings-bank book issued to A, provided that B might draw upon the deposit for the completion of a house which he was building for A. In interpleader proceedings brought by the savings-bank it was held that B's power of withdrawal was limited to the single purpose of paying bills due for the construction of the house; and that a counterclaim filed by O, alleging that the plaintiff had accepted an order in O’s favor drawn by B, was demurrable for failing to state that the order was given for such purpose, and also that there was any consideration for its acceptance by the plaintiff.</p> <p>An order to pay $300, or what may be due on a specified savings-bank book, is not negotiable, and therefore does not import a consideration.</p> <p>A defendant may properly be ordered to interplead after the issues raised by his answer and counterclaim have been determined in far vor of the plaintiff; and in the absence of anything in the record to the contrary, it must be assumed that such determination was made before the order to interplead was passed.</p>

<p>Chapter 286, § 5, of the Public Acts of 1895, provides that upon application of the owner of land adjoining a highway the municipal authorities shall place stone or iron bounds to mark the highway limits. Held that the municipal authorities were not authorized by this Act to conclusively establish controverted boundaries, but merely to mark by permanent bounds the location of undisputed highway lines.</p> <p>The failure of the trial court to treat, as material, facts established by the evidence which might, and presumably would, have influenced its conclusion, had they been considered, furnishes ground for a new trial.</p> <p>In an action to restrain the defendant from erecting a fence within the alleged limits of a highway, it was averred in the complaint and admitted by the answer that the road was laid out by the County Court in 1828, that since 1895 the defendant had owned land lying on the east side of the highway, and that at his request the selectmen of the plaintiff town had placed iron bounds to mark said east line. The fifth paragraph of the complaint alleged that said bounds were placed on the true and correct line, and as that had existed for more than fifty years. This allegation was denied, as well as the subsequent allegations to the effect that the defendant had unlawfully erected a fence twenty feet west of said established line and partly in the traveled path of the highway, and that said fence narrowed and obstructed the highway and constituted a public nuisance to travel thereon. The trial court ruled that upon this branch of the case the sole question was whether the line marked out by the selectmen in 1895 was coincident with the east line of the highway as laid out by the County Court in 1828. Held that the question whether the strip of land in dispute had become part of the existing highway, by dedication, was also within the issue, and that the court erred in treating the facts bearing upon that question as immaterial.</p> <p>The character, extent and duration of the use which has been made of land with the full knowledge of its owner and without his dissent, and the public and private rights claimed to have been acquired thereunder, may be such that the law will conclusively presume an intent upon the part of the owner to dedicate the land to public use.</p> <p>The facts in the present case reviewed and held to justify the presumption of an intent to dedicate.</p>

S. Backus, deceased, of a claim for domestic services rendered the decedent, taken to the Superior Court in Windham County and tried to the jury before Thayer, J.; verdict and judgment for the claimant for $218, and appeal by the administrators of the estate for alleged errors of the court in its rulings and charge, and in refusing to grant a new trial upon the ground that the verdict was against the evidence.

<p>In a suit for the appointment of a receiver of the defendant, a Connecticut corporation, the complaint alleged that the plaintiff was the assignee of a valid judgment for 1120,000 which had been rendered against the defendant in California in 1892; that shortly before the California suit was begun the defendant conveyed all its assets to an English corporation, formed for that purpose by the defendant’s stockholders, who thereupon exchanged their stock for shares in the English company; that the defendant was bankrupt, its only asset being the written promise of the solvent English company to assume and pay its debts; that in 1895 the plaintiff sued the English company and the defendant in Great Britain, upon said judgment, but the English court adjudged that such an action could not be maintained; that the two companies had been and still were acting in collusion to defeat the rights of the plaintiffs and other creditors in whose behalf the present suit was brought, and would be successful unless a receiver were appointed; and that such receiver, under the law, comity and practice of the courts of Great Britain, would be permitted to sue the English company there as effectually as could a resident suitor. Held that the complaint must be regarded, in substance, as an appeal to a court of chancery to secure the enforcement of a contractual right held by the defendant practically as a trustee, which it collusively refused to enforce in behalf of those who were equitably entitled to claim its benefits; and, so construed, was sufficient, (pp. 591-594.)</p> <p>The plaintiff having filed the original assignment of the judgment in the office of the clerk of the court in California, it was held that such filing was equivalent to an assertion by him that it was a proper-paper to be filed in the cause, and that it would be presumed, in absence of proof to the contrary, that he would not thereafter have been allowed to reclaim it. (p. 598.)</p> <p>If a witness testifies that a document shown him is a true copy of the original, it is not necessarily a fatal objection to its reception that he did not compare the two; since his recollection of the terms of the original may beso perfect as to dispense with a comparison, (p. 598.)</p> <p>A document containing erasures and interlineations does not cease to retain its character as an original, merely because a duplicate, perfect in form, is afterwards executed. Nor is the interlined original invalidated, as to third parties, by writing underneath the signatures the name of the witness and the form of acknowledgment which appeared upon the duplicate, (p. 598.)</p> <p>Statements contained in the certificate of a clerk of court appended to a duly authenticated copy of record, that proceedings to review the judgment therein referred to had not been and could not now be taken, and that the judgment was final and bore interest at a certain rate, are mere hearsay and matter of opinion, (pp. 598, 599.)</p> <p>The certificate in question asserted that the copy of record embraced all the files. Held that this was proper, and afforded prima facie evidence that no proceedings in review had been instituted, (p.599.)</p> <p>The defendant objected to the admission of the transcript of the record, which purported to contain a copy of the assignment of the California judgment to the plaintiff, as evidence of such assignment. Held that the objection should have been taken, not to the admission of the document, which the court was bound to admit in its entirety, but to the effect of the particular portion of the record setting forth the assignment, (p. 599.)</p> <p>The decision of the trial judge, that an American attorney was sufficiently familiar with the law of a foreign country in respect to the particular matter before the court to enable him to testify what it was, will not be reviewed unless it is clearly unsupported by the evidence, (pp. 599, 600.)</p> <p>If a document purporting to be the original contract is found in the office where the law required it to be deposited, and the signature of one of the parties thereto is identified as genuine, the inference is justifiable that the other signature was also an original one, and that such contract was in fact executed, (p. 600.)</p> <p>A compared copy of such a docu ment is admissible in evidence. (p. 600.)</p> <p>Memoranda upon such copy which were not part of the original are inadmissible, but do not affect the competency of the copy. (p. 600.)</p> <p>It is not essential that such copy should contain schedules attached to the original document, which, upon its face, appeared to be complete and effectual without reference to them. (p. 601.)</p> <p>The admission of a document before giving opportunity for full cross-examination concerning it, falls within the discretion of the trial court, (p. 601.)</p> <p>In the absence of statutory provision as to the mode of authenticating official copies of documents found in foreign registries or public offices, courts must be guided by the rules of the common law, or the usages of nations. Any evidence calculated to give reasonable assurance that the document offered is in fact certified by the official custodian of the original of which it purports to he a copy, and that such custodian had due authority so to certify, is sufficient; and by the usages of civilized nations these facts are permitted to he proved by certificates of public officers under their official seals, when these seals are such that the court takes judicial notice of them. (p. 602.)</p> <p>State courts may properly take judicial notice of the seals of notaries public and of United States consuls, in authenticating copies of documents in foreign public archives, (p. 602.)</p> <p>An official attestation of the verity of a copy of a document in public archives was simply “A true copy.” Held sufficient, (p. 603.) The plaintiff offered to testify that he sued the defendant and the English company, jointly, in 1895, in England, seeking to have a trust declared against them and have the English company pay his judgment. Held that this evidence was material and relevant, and tended to show that the plaintiff had no adequate remedy by a suit in his own name for the collection of the California judgment. (p. 604) An exception to a ruling of the court admitting certain testimony, is not available, unless it appears from the record that the testimony objected to was in fact given, (p. 604)</p> <p>The simple fact of the insolvency of a corporation does not convert its assets into a trust fund for its creditors, (p. 593.)</p> <p>A receiver of a corporation will not he appointed (except under a statute), unless the same relief would be given when claimed in an action against an unincorporated association of natural persons, (p. 593.) A creditor of a corporation is not disqualified, by reason of such interest, from becoming its receiver, (p. 604)</p> <p>The decree in the present case not only appointed a receiver of all the property and assets of the defendant, but also limited a time within which claims not presented to the receiver were to he barred, and contained other provisions for winding up the affairs of the defendant. Held that inasmuch as equity never does anything by halves, these provisions were properly inserted, to the end that full and complete justice might be done between the corporation and its shareholders on the one hand and all of its creditors upon the other, all of whom were represented by the parties to the suit; and that the general claim for relief was sufficient to justify the provision in the decree looking to the final distribution of whatever might be realized from the insolvent estate, (p. 605.)</p> <p>A creditors’ bill should allege either that the plaintiff has already obtained judgment upon bis demand in this State, or ask for such judgment as a basis for further relief, (p. 593.)</p> <p>It is not the office of a court of equity to appoint receivers as a mode of granting ultimate relief. They should be appointed only as ancillary to the enforcement of some equitable right, (p. 593.)</p> <p>It is in tbe judgment file that one must look to ascertain the facts upon which the judgment rests, rather than to a special finding made for purposes of appeal, which presumably does not cover the whole ground, nor state every fact underlying the judgment, (p. 597.)</p> <p>A judicial finding, if doubtful, should be so read as to make it harmonize with the judgment rendered, if the words used will fairly justify it. (p.597.)</p> <p>No statute is needed to give a court of equity power to wind up the affairs of an insolvent corporation, without dissolving it, where such relief is the only mode of doing complete justice between it and its creditors, in a cause otherwise fully within its jurisdiction, in which all parties in interest are present or represented, (p. 606.)</p>

Action to compel the defendant to contribute a reasonable sum to the support of her mother, brought-to the Superior Court in Hartford County and tried to the court, Robinson, 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. The plaintiffs also appealed for the refusal of the court to allow them costs.

<p>Action to recover damages for personal injuries resulting in the instantaneous death of the plaintiff’s intestate, brought to the Superior Court in Hartford County and heard in damages to the court, Prentice, J.; facts found and judgment rendered for the plaintiff for 15,000, and appeal by the defendant for alleged errors in the rulings of the court.</p> <p>At a former term of this court a new trial was granted in this cause (72 Conn. 617) for the purpose of ascertaining the quantum of damages only. The trial court found (1) that the intestate, Davis, died as the direct result of the injuries complained of in the complaint; (2) that his death “ was instantaneous, and was neither attended nor preceded by any pain or suffering from the injuries, or by any apprehension thereof;” and (3) that at the time of his death he was twenty-six years of age and in excellent health.</p> <p>The evidence to show the age and health of Davis at the time of his death, was offered as bearing upon the extent of the results of the injury, and as showing that “ the damage from an injury resulting in death was greater in the case of a man in the prime of life and in good health, than in the case of a man who was about to die anyway, whether from illness, or old age.” This evidence was objected to by the defendant as immaterial and irrelevant, “ and because it laid no foundation to measure the damages ; ” andspecial objection was made to it “ in so far as it was offered for the purpose of showing the value of Davis’ life to himself.” The court overruled the objections and admitted the evidence.</p> <p>The defendant claimed as a matter of law that the value of the life of Davis to himself was not the rule of damage, and that mere deprivation or loss of life, in itself, was not a proper element of substantial damages. The court overruled these claims, and took as the measure of damages “ the value at the time of the injuries of the deceased’s life to himself.” The reasons of appeal are based upon these rulings of the court.</p>

Action to recover for work done and materials furnished, brought to the Court of Common Pleas in Hartford County where the plaintiffs’ demurrer to the first defense was sustained and the cause was afterwards tried to the jury before Case, J.; verdict and judgment for the plaintiffs for $238 damages, and appeal by the defendant for alleged errors in the rulings and charge of the court.

Action by the payee to recover the amount of two promissory notes, brought originally to the Court of Common Pleas in Litchfield County and removed, under the counterclaim of the defendant, to the Superior Court in that county and tried to the court, Elmer, J.; faets found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings and findings of the court.

Action to recover for work and labor done and materials furnished in grading and constructing a street railway, brought to the Superior Court in Tolland County and tried to the jury before Ralph Wheeler, J.; verdict and judgment for the plaintiffs for $462, and appeal by each party for alleged errors in the rulings and charge of the court. The complaint in this case was the common counts with a bill of particulars.

; facts found and judgment rendered reversing the action of the Court of Probate, and appeal by the administratrix for alleged errors in the rulings and findings of the court. This is an appeal by one of the four daughters of Sarah A. Goodrich, who died in November, 1898, from the order of the Court of Probate allowing the account of Martha A. Goodrich, another of said daughters, as administratrix upon her mother’s estate.

Action in the nature of an appeal from the refusal of the hoard of relief of the city of New Haven to reduce the assessors’ valuation of the plaintiff’s real estate, brought to the Superior Court in New Haven County and reserved by that court, Boraback, J., upon a motion made by the defendant during trial to erase the cause for want of jurisdiction, for the consideration and advice of this court.

.Action to determine the validity and construction of the will of Elisha Hull and that of Sarah A. Hull, his wife, both of Norwich, deceased, brought to the Superior Court in New London County and reserved by that court, Robinson, J., upon the facts stated in the complaint, for the consideration and advice of this court. The case is sufficiently stated in the opinion.

Action to recover damages for breach of contract, brought to the City Court of Waterbury and thence by the defendant’s appeal to the District Court of Waterbury, and tried to the jury before Gowell, J.; verdict and judgment for the plaintiff for $62 damages, and appeal by the defendant for alleged errors of the court in charging the jury, and in refusing to grant a new trial for a verdict against evidence. The case is sufficiently stated in the opinion.

Action to recover rent, 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 for $230, 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 loss of live stock through the claimed negligence of the defendant as a common carrier, brought originally before a justice of the peace and thenee by the defendant’s appeal to the Court of Common Pleas in New Haven County and tried to the jury before Hubbard, J.; verdict and judgment for the defendant, and appeal by the plaintiff for alleged errors in the rulings, charge and findings of the court.

Suit to determine the validity and construction of the will of John P. Hamilton of Stamford, deceased, brought to the Superior Court in Fairfield County and reserved by that court, Robinson, J., upon an agreed finding of facts, for the consideration and advice of this court.

<p>In actions of negligence the chief practical difference between a trial to the court and a hearing in damages after a default or upon demurrer overruled, is that the burden of proof as to negligence and contributory negligence rests upon the plaintiff in the one case and-upon the defendant in the other. In either case the trial involves an adjudication as to whether the facts alleged and proven are legally sufficient to support the judgment rendered, and the correctness of such adjudication may be reviewed on appeal to this court.</p> <p>In the present case the defendant, after judgment for substantial damages had been rendered against it, moved and requested the court to find the facts upon which its judgment was founded, to set them forth specially, and to cause such finding to become part of the record, pursuant to §§ 1107 and 1111 of the O-eneral Statutes. The trial court had already prepared a finding of the facts upon which the judgment was based, which accompanied the judgment file, and thereafter made no other or further compliance with the defendant’s motion and request. Held that under these circumstances that finding was evidently regarded by the trial court, and should be treated by this court, as a part of the judgment record.</p> <p>Error may be assigned in respect to the conclusions drawn from facts thus made a part of the judgment record, although such judgment is rendered upon demurrer overruled.</p> <p>The request to specially set forth the facts, referred to in § 1111, should ordinarily precede the judgment, while the motion to find the facts, authorized by § 1107, should follow the judgment. The use of both motion and request is, however, unnecessary, and is not good practice.</p> <p>It is the usual and better practice, in judgments on default or demurrer overruled, not to set forth in the judgment file or record the facts which support the conclusion of actionable negligence. If error is claimed in reaching the facts found and the conclusions drawn from them, the question can be presented more clearly by simply including the facts found, in their proper form, in the finding made on appeal.</p> <p>In an action to recover damages for an injury to her hand the plaintiff, a mill operative, alleged and relied upon two grounds of negligence: first, that the defendant did not warn her of the dangerous nature of the work required, and second, that the machine was defective and was knowingly permitted by the defendant to remain in that condition. Held that the first ground of negligence was negatived by the facts found, and that in reaching the conclusion of negligence upon the second ground, the trial court had erred in finding certain facts, material to such conclusion, without any evidence at all.</p> <p>Among other facts, the trial court found that after the plaintiff’s injury the defendant issued an order requiring the power to be turned off every time the operator had occasion to remove cartridge shells from the dial of the machine, and that if such a rule had been in force at the time of the accident to the plaintiff it could not have occurred. Held that the mere fact that such a rule was made after the accident did not justify the conclusion of negligence upon the part of the defendant in not having made it before.</p> <p>The complaint alleged that the plaintiff was a mill operative, but nothing as to any other occupation or employment. Meld that evidence of her ability to earn money as an accompanist on the piano was not relevant to show the extent of the injury, and that as no damages had been alleged and claimed on that ground, none could be recovered.</p> <p>A master cannot evade the legal duty he owes to his servants by a mere form in the mode of their employment and in fixing their compensation.</p> <p>A trial judge may properly refuse to mark “proven” or “not proven” against such paragraphs of the draft finding as are not framed in accordance with the rules.</p> <p>When a trial judge has once marked certain paragraphs of the draft finding as “proven” or “not proven,” and filed the draft thus marked as his finding for appeal, and subsequently alters such marking, the fact of such alteration should be made apparent on the record, otherwise it will be0 corrected by this court to correspond with the fact.</p>

Action to recover moneys deposited with a private banking-house of which the defendant was claimed to he the surviving partner, brought to the Superior Court in New Haven Couuty and tried to the jury before Greorge W. Wheeler, J.; verdict and judgment for the defendant upon the first count and for the plaintiff upon the second, and appeal by each party for alleged errors in the rulings and charge of the court.

Action to recover damages for loss of and injury to household goods delivered to the defendant as a common carrier, brought originally before a justice of the peace and thence by the defendant’s appeal to the Court of Common Pleas in New Haven County and tried to the court, Hubbard, J.; the court sustained the demurrer and rendered judgment for the defendant, and the plaintiff appealed for alleged errors in the rulings of the court.

Action for fraud and collusion in the sale of certain real estate, praying for a conveyance of the land from one of the defendants and for damages from both, brought to the Superior Court in New Haven County and tried to the court, Roraback, J., upon a demurrer to the complaint; the court sustained the demurrer and rendered judgment for the defendant, and the plaintiff appealed for alleged errors in the rulings of the court.

Amicable submission to arbitration under a rule of the District Court of Waterbury, which accepted the report of the arbitrator, Charles G. Root, Esq., and rendered judgment for the plaintiff to recover $428 and costs, and appeal by the defendant to the Superior Court in New Haven County.

<p>A contract of settlement between a Congregational church and its pastor is, unless otherwise therein provided, for the term of his life, unless sooner terminated for cause, or altered by mutual consent.</p> <p>It would be thus altered by a subsequent vote of the society substituting a shorter term, which was assented to by him. ■</p> <p>Such a vote would not be invalid because passed on Sunday.</p> <p>Action taken by an ecclesiastical society at a meeting not properly warned, may be ratified and confirmed by long and general acquiescence on the part of its members.</p> <p>Under a provision in the constitution of an ecclesiastical society that business might be transacted at any regular meeting, or at a special meeting, notice of which should be read from the pulpit on the preceding Sabbath, such notice was required of any business to be brought before a regular meeting.</p> <p>A provision in such a constitution that the pastor shall hold office without limitation of time is not retrospective, and does not vary the terms of a previous settlement.</p> <p>A contract by which a member of a particular religious denomination is settled over a church of that denomination as its pastor, is necessarily made with reference to the laws and usages of the denomination, and they enter into and form a part of it.</p> <p>An ex parte council of churches, called by certain members of a Congregational church to consider charges which they preferred against its pastor, heard evidence and reached certain conclusions; but before they were announced the church and the aggrieved members united in a letter-missive calling a mutual council for the same purpose. The pastor signed the letter-missive as chairman of the committee of the church, and in that capacity appeared before this council when it met, and was fully heard. It found the charges proved, and advised the pastor .to resign forthwith, and withdraw permanently from the Christian ministry. The church, which was also the ecclesiastical society, voted to accept this advice and dispense with the pastor’s services thereafter. The trial court having found as a fact that Congregational custom and usage authorized the mutual council to pursue the course it took with respect to the plaintiff, held that the defendant by accepting its advice became authorized to sever the pastoral relation, and that it could not be said that any principle of substantial justice was violated in upholding such usage, nor that the plaintiff had been condemned by a tribunal to which he had not expressly subjected himself.</p> <p>Such a council could exercise its discretion as to how far back to push its inquiries into the career and conduct of the plaintiff respecting the matters charged, and even to investigate his doings before he became a Congregational minister.</p> <p>The laws and usages of Congregationalism—which was for nearly two centuries the established religion of this State—are a subject-matter of judicial notice, and any error of the trial court in this particular was reviewable on appeal.</p> <p>It is not inconsistent with any principle of justice applicable to such proceedings, for the mutual council to refer extended documentary evidence to one of its members for examination and report; such course being .in accord with Congregational usage.</p> <p>The dissatisfied members of the church were not disqualified from participating in the vote to accept the council’s advice.</p> <p>In a suit by the removed pastor (who was also a member of the church) for his salary, it was held that if he desired to question the impartiality of the mutual council because it was composed in part of churches which had been represented in the ex parle council, he should have made his objection during the proceedings before the mutual council.</p> <p>The contract of settlement provided for an annual donation party. Reid that the lawful dissolution of the pastoral relation before the end of the second year put an end to the plaintiff's right to a “ donation ” for that year.</p> <p>A mutual council can only be called by a church; but the other party signs the letter-missive.</p> <p>The right to take judicial notice and apply it to the decision of causes is one which appertains to every court of justice, high or low, and in the exercise of appellate no less than of original jurisdiction.</p> <p>Church councils cannot be expected to conform to all the rules applicable to courts of public justice, and are not governed by the strict rules of legal evidence. It is enough if those whose conduct may be the subject of inquiry before them have a fair and reasonable hearing.</p> <p>There is no necessary impropriety in the refusal of such a council to allow cross-examination of witnesses.</p> <p>A member of both councils did not sit in the second until considerable testimony had been given, the nature and effect of which he learned by inquiry of his fellows. This course was found to be in accord with the usages of such councils. Reid that while it was a mode of procedure which should be practiced, if at all, with caution and reserve, yet it was not such a departure from the fundamental principles which should govern such hearings as to vitiate a result which was unanimously reached.</p> <p>The letter-missive for a council fulfils the office which a warning does for a meeting of an ecclesiastical society, and a ruling of the council that a certain line of evidence is not within the call, is not to be lightly overruled.</p> <p>The only substantial difference between an advisory council called by an unconsociated Congregational church and the regular council of a consociation, is that one is convened for the occasion by parties who name the constituent members, and the other is a standing body.</p> <p>Statements in the draft finding which are marked “proven” will be given the same force and effect as if incorporated in the finding of the court; hence a motion to correct the finding by adding these matters is unnecessary and will be overruled;</p>

Action to recover for supplies furnished a pauper, brought originally before a justice of the peace and thence by the defendant’s appeal to the Court of Common Pleas in Fairfield County and reserved by that court, Curtis, J., upon a finding of facts, for the consideration and advice of this court.

Action to recover the amount of a liquor license bond, brought to the Court of Common Pleas in New Haven County and tried to the court, Bishop, J., upon a demurrer to the answer; the court sustained the demurrer and rendered judgment for the plaintiff, and the defendant Joseph Corr appealed for alleged errors in the rulings of the court. The complaint alleges the execution of the bond (which is set out in full), and also the facts by virtue of which it became forfeited.