Volume 74 — Connecticut Reports

Action to establish the liability of the defendant as trustee, and for an accounting, brought to the Superior Court in Fair-field County where a demurrer to the complaint was overruled (Roraback, and the cause was afterwards tried to the court, Thayer, J.; facts found and judgment rendered requiring the defendant to account as trustee, and appeal by him for alleged errors in the rulings of the court.

Action to recover damages for shooting and killing the plaintiff’s dog, brought to the Court of Common Pleas in Fairfield County and tried to the court, Curtis, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in- the rulings of the court. Permission to file a motion for reargument refused. The case is sufficiently stated in the opinion.

Action for an accounting and for a partition or sale of real estate owned by tenants in common, brought to the Superior Court in Litchfield County and tried to the court, George W. Wheeler, J.; the facts were found and an order passed directing a sale of the premises and payment of the avails into court, and at the next term of court a supplemental judgment was rendered (Shumway, J!) confirming the sale and distributing the net proceeds between the parties in accordance with…

Action of replevin for the possession of a horse, brought to the Court of Common Pleas in Litchfield County and tried to the court, Welch, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court. This is a statutory action. General Statutes, §§ 1328-1334. The writ directs the replevin of a horse of the value of $140. The declaration alleges: 1.

; facts found and judgment rendered confirming the action of the Court of Probate, and appeal by the executors for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Actions to restrain the defendant from collecting an assessment for asphalt street paving and enforcing a lien therefor upon the premises of the respective plaintiffs, brought to the Court of Common Pleas in Hartford County and reserved by that court, Case, J., upon demurrers to the complaints, for the consideration and advice of this court. The material parts of the complaint are the same in each of these cases. The demurrer and the reasons assigned are also the same.

<p>The propriety or necessity of drawing conclusions of fact from other facts can seldom, if ever, be made the subject of a reservation for the advice of this court.</p> <p>General Statutes, § 3836, provides that shares of the capital stock of certain corporations shall be set in the tax list of the stockholder, at their market value, in the town in which he resides; but that so much of the capital of any such company as may be invested in real estate, on which it is assessed and pays a tax, shall be deducted from the market value of its stock, in its returns to the assessors. Held that the question whether a portion of the capital was so invested or not, was one of fact for the determination of the trial court; and that in the absence of any finding upon that issue no question of law was presented for the advice of this court.</p> <p>The real question is not one as to the form of book-keeping, but is one of substance: Is the realty a part of that capital, or capital and surplus, which, at the date of the company’s return to the town assessors, represents the excess in value of the net assets above the amount of the corporate debts and liabilities, in which the shareholders are directly interested. If so, the deduction should be made, otherwise not.</p>

Action to recover damages .for prosecuting a false and malicious suit against the plaintiff, brought to the Superior Court in New London County, where the defendant filed a plea in abatement, the plaintiff replied to said plea, and the defendant demurred to the reply; the court, Shumway, J., sustained the.demurrer and afterwards rendered judgment (George W. Wheeler, J.) for the defendant upon the plea in abatement, and the plaintiff appealed for alleged errors in the rulings…

tried to the court, Skumway, J.; facts found and judgment rendered confirming the action of the Court of Probate, and appeal by the original appellant for alleged errors in the rulings of the court. The will of Jane Gr. Thomas is in substance this: A bequest for the benefit of her husband, which lapsed by his prior death.

Action by an employee to recover damages for personal injuries claimed to have been caused by the negligence of the defendant, brought to the Superior Court in New London County and heard in damages to the court, Shumway, J.; facts found and judgment rendered for the plaintiff for $750 damages, and appeal by the defendant for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

<p>The rule that one accused of crime is presumed to be innocent, belongs to criminal law, and should not be applied in a civil action for damages for an indecent, carnal assault. In such a case there may be a natural inference of more or less force in favor of the defendant, arising from the fact that men in general obey the law; but the mere failure of the court to call the attention of the jury to such a familiar presumption is not error.</p> <p>The court charged the jury that the plaintiff must prove by a fair preponderance of evidence the presence of the defendant at the times and places of assault as alleged; that it was for them to determine as a question of fact whether the defendant’s alibi had been established or not, “but that when it is established to the satisfaction of the jury it is as good a defense as any.” Held that the charge taken as a whole upon this point was not incorrect.</p> <p>The complaint alleged that the defendant, on two occasions, violently assaulted the plaintiff, and against her will debauched and carnally knew her, by reason of which she became pregnant and was delivered of a bastard child. In the charge the jury were told that they might give exemplary or vindictive damages if they found “ wilful and malicious misconduct on the part of the defendant.” Held that the allegations, if proved, presented a clear case for exemplary damages, as stated by the court.</p> <p>A charge must he considered with reference to the evidence and to the claims of the parties as actually made on the trial. If it correctly states the law applicable thereto, it is not erroneous because it fails to touch upon a point not made at the trial.</p>

Information for the violation of a city ordinance, brought to the Criminal Court of Common Pleas in New London County and tried to the jury before Noyes, J.; verdict and judgment of guilty, and appeal by the defendant for alleged errors in the charge of the court.

Action to recover damages for slander, brought to the Superior Court in New London County where a demurrer to the complaint was overruled (Elmer, J.') and the case was afterwards tried to the jury before George W. Wheeler, J.; verdict and judgment for the plaintiff for $800 damages, and appeal by the defendant for alleged errors in the rulings and charge of the court. This was an action for slander. The complaint on which the trial was had was as follows: “ 1.

<p>Where possession of personal property once attached has been lost by the attaching officer, the mere neglect or refusal of a drayman in whose possession the property was found, to turn it over to the officer upon the latter’s assertion that it had been attached, does not make him guilty of resisting and obstructing such officer in the discharge of his duty, in the absence of evidence that the officer attempted to reattach the property; and a charge to the jury which permits them to draw an inference of guilt upon such ground is erroneous and misleading.</p>

Action by an indorsee to recover the amount of a promissory note, brought to the Superior Court in New London County and tried to the jury before George W. Wheeler, J.: the plaintiff had a verdict which the trial court, upon motion of the defendants, set aside as against the evidence, and the plaintiff appealed alleging error in this action of the court. This action was brought by the plaintiff as the indorsee and holder of a note, which was as follows:— “1988.83.

<p>Action to settle and determine the rights of the respective parties in and to certain lands in the town of Ridgefield, brought to the Superior Court in Fairfield County where demurrers to the answers were overruled ( Greorge W. Wheeler, J!) and the cause was afterwards tried to the court, Roraback, J. ; facts found and judgment rendered for the plaintiff as against the town of Ridgefield, and Hiram Kellogg and Alonzo Stevens, defaulting defendants, and in favor of the other defendants, and appeal by the plaintiff for alleged errors in the rulings of the court.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>Amicable suit to determine the rights of the parties in and to a dividend upon shares of stock held 'under a testamentary trust, brought to the Superior Court in Fairfield County and reserved by that court, Robinson, </., for the consideration and advice of this court.</p> <p>The testator died June 4th, 1895, leaving a will executed in 1898. His executors, soon afterwards, transferred to the society’s committee as trustees, the shares of stock- referred to in the following clause of the will: “ I give and bequeath to the trustees of the Second Universalist Church of Stamford, Connecticut, situate in the Borough of Stamford, one hundred shares of the capital stock of the Pennsylvania Coal Company in trust, to pay from and put of the dividends and income from said stock the one-half thereof to Lot Mead Hubbard and his sister, Harriet Colegrove, children of Andrew Hubbard, deceased, or to the survivor of them during their lifetime and the lifetime of the survivor, annually or semiannually, at the discretion of said trustees, and to use and apply the remaining one-half of said dividends and income in defraying the annual expenses of said Second Universalist Church. On the decease of both the said Lot Mead Hubbard and Harriet Colegrove, I give and bequeath said stock to the trustees aforesaid, to be by them used, at their discretion, in the support and maintenance of said Second Universalist Church. Should a reorganization of said Pennsylvania Coal Company be bad after my decease, then it is my will and I so direct, that said trustees reinvest so much of the proceeds of and from said one hundred shares of said stock as such number of shares will be entitled to of the shares of the reorganized company or companies.”</p> <p>Said Pennsylvania Coal Company was organized in 1838, and its organization continued in 1895, by acts of the legislature of Pennsylvania. The par value of its stock was at the time of the making of said will, and had been for many years, $5,000,000; and for many years and at the time of the making of the will aforesaid, it had paid regular yearly dividends of 16 per cent., being less than the amount earned. The excess not used for dividends or in the business of the company was invested in stocks, bonds and other securities. This excess fund stood upon the books of the company as a “ Coal Land Renewal Fund,” and as surplus. The purpose of the former fund was to replace coal lands owned by the company which should become mined out, by the purchase of other coal lands. On May 30th, 1895, the Coal Land Renewal Fund stood upon the books of the company at $4,500,000, and the surplus at $4,012,701.08.</p> <p>At the time of making his will and at the time of his death, the testator was a large bolder of the stock of this company, owning 1,155 shares, and knew of the existence and approximate amount of the funds aforesaid.</p> <p>In December, 1900, and January, 1901, substantially all the shareholders in the company, including the society’s committee, sold their shares to J. P. Morgan & Co. for $276 a share (the par value being $50), under an agreement that certain specified assets should “be reserved out of the interests in said property passing to the purchasers by reason of the sale and transfer of said stock, and that such action shall be taken by the present board of directors of said Pennsylvania Coal Company as shall secure to the stockholders of record upon such date as may be fixed by the present board of directors, not later than January 15th, 1901, the right to participate in and to receive the benefits of said reserved assets, to the exclusion of the purchasers under this contract and all persons claiming under them.” The assets reserved were all cash and coal on hand on January 15th, 1901; all bills and accounts receivable, less bills and accounts payable, as of that date; all loans due to the company; and most of its stocks and bonds which were “ held for investment.”’</p> <p>The agreement further provided that “ said reserved assets or their equivalent-, may be paid by the Pennsylvania Coal Compan}' to its stockholders of record at the time of the closing of the books of the Company, prior to delivery of control to Messrs. J. P. Morgan & Co. or their assigns; in other words, that the stock delivered to J. P. Morgan & Co. is not to carry with it any interest in the reserved assets. Eut in order that the total amount payable to each stockholder hereunder, and also for his distributive share in such reserved assets, may be made in one payment, Messrs. J. P. Morgan & Co. will pay to the subscribing stockholders their respective shares of such reserved assets, as directed, by and for account of the Pennsylvania Coal Company, upon delivery to them in cash of the amount so to be distributed to such subscribing stockholders; but Messrs. J. P. Morgan & Co. shall have no claim, nor any other commitment, with relation to such reserved assets.”</p> <p>The board of directors of the company, earl}' in January, 1901, after reciting that J. P. Morgan & Co. “ as soon after January 15th, 1901, as they shall have acquired and paid for a majorit}' of the capital stock of the company, will desire to assume the direction and control of the company,” and that “before surrendering such control” the board desired “to distribute among the stockholders of record on January 8th, 1901,” the reserved assets “representing accumulated and undivided profits of the Compan}', which the said purchasers have agreed to except from the operation of said purchase,” resolved as follows:—</p> <p>“ I. That a dividend be and the same hereby is declared on the capital stock of this company, consisting of the said assets, payable as hereinafter directed, to the stockholders of record at the close of business on January 8th, 1901.</p> <p>“ II. That the officers of the Company forthwith transfer, assign, pay over and deliver to Samuel Thorne, John W. Sterling and James N. Jarvie, the said assets, in trust, for the following uses and purposes: 1. To hold the same for the benefit of the stockholders of record of this Company, at 3 P. M., January 8th, 1901. 2. To convert the same into cash in such manner and at such times as, in their absolute judgment and discretion, shall be deemed advisable. 3. To pay on January 15th, 1901, through Messrs. J. P. Morgan & Company, to the said stockholders of record on January 8th, 1901, so much of the net proceeds as may then have been realized from the said assets, not exceeding 200$, and, as speedily thereafter as possible, to pay the balance of such net proceeds to the said stockholders of record on January 8th, 1901, at such times and in such installments as the said trustees or the survivors of them maj determine.”</p> <p>The society’s committee received for their shares $276 a share, and also $10,000 paid on account of the reserved assets.</p> <p>The question reserved was whether this $10,000 was to be regarded as principal or income.</p>

Action to recover damages for personal injury claimed to have been caused by a dog owned by the defendant, brought to the Court of Common Pleas in Fairfield County and tried to the jury before Curtis, J.; verdict and judgment for the plaintiff for $400 damages, and appeal by the defendant for alleged errors in the charge of the court. The case is sufficiently stated in the opinion.

Action of scire facias brought to the Superior Court in New Haven County where the defendant filed a motion to dismiss the case for want of jurisdiction, which was granted by the court, Roraback, J., and the plaintiff appealed for alleged error of the court in so doing. The writ and complaint followed, in general, Form 268 in the Practice Book, except as to the authority signing the process.

<p>General Statutes, § 3890, provides that the interest of any person, “in any portion of real estate ” listed for taxation, “ shall he subject to a lien for that part of his taxes which is laid upon the valuation of said real estate ” as found in the list when finally completed. Held that the full amount of a tax upon three sepai'ate pieces of land, which were listed and valued as a whole, could not be collected, as against the taxpayer’s grantees, by filing and foreclosing a lien upon two of them only. Under such circumstances the certificate of lien should include all three pieces, each of which must bear its own proportion of the whole tax.</p> <p>The fact that one of the three pieces was subject to a life lease does not justify its omission from the certificate of lien, under the provisions of § 3845, if it also appears that the parties to such lease had agreed that the lessor should continue to list the land in his own name for taxation.</p> <p>Whether every life estate, however created, is within the terms of § 3845, quosre.</p>

Suit to determine the construction of the will of John Jackson of Ansonia, deceased, brought to the Superior Court in New Haven County and reserved by that court, Ralph Wheeler, J., upon the facts stated in the complaint, for the consideration and advice of this court. The testator died on the 12th day of August, 1899. He left a will properly executed to pass real and personal property, which after his death was duly proved and established in the Court of Probate.

Actiou in the nature of an appeal from the doings of the municipal authorities of New Haven, upon an application of the plaintiff for the approval of a plan submitted by it for double tracking a portion of its street railway, taken to the Superior Court in New Haven County and reserved by that court, Ralph Wheeler, >/., upon a demurrer to the complaint and a motion to erase for want of jurisdiction, for the con. sideration and advice of this court.

Action in the nature of trespass qu. cl. fr., 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 $1 damages, and appeal by the defendants for alleged errors in the rulings and charge of the court. The plaintiff filed a bill of exceptions for alleged errors of the court in excluding certain evidence and in limiting the plaintiff’s costs to one dollar.

<p>Tlie defendant P took possession of land under an agreement of purchase, by the terms of which he was required to build a house on the premises and finish it to the roof before receiving a deed, and thereupon to mortgage the premises back to the grantor for $1,500, the balance of the purchase price; and this agreement was duly performed. Held:—</p> <p>1. That P, prior to the receipt of his deed, was so far an owner of the land that his equitable interest therein might be subjected to meclianics’ liens for labor and material expended in tbe construction of tbe house.</p> <p>2. That under the agreement in question such liens took precedence of the $1,500 mortgage, only in so far as they -were based upon work and material necessary to the completion of the building to the roof.</p> <p>3. That the lienors could not claim as subcontractors, since P, under his agreement of purchase, was not an original contractor within the meaning of the lien law.</p> <p>Deeds necessary to carry into effect the contract of purchase were prepared when that agreement was drawn, and were placed in the hands of a third person to be delivered when P should perform the conditions imposed upon him. Held that these deeds were delivered in escrow, and that the trial court should have so found.</p> <p>A mere agreement to sell land does not of itself give to the prospective vendee such an equitable estate in the property as to enable him to create a lien as owner which would affect the vendor’s title, even if the materials for which the lien is claimed were furnished with the owner’s consent.</p>

; facts found and judgment rendered in favor of the petitioner, and appeal by the respondent for alleged errors in the rulings of the court.

<p>Action to recover the amount of two promissory notes, brought to the District Court of Waterbury where the defendant pleaded in abatement; the court, Cowell, J., sustained the plaintiff’s demurrer to the plea, whereupon the defendant answered over, alleging coverture, and the plaintiff demurred to this plea, also; the court, Bradstreet, J., sustained the demurrer, and the cause was afterwards tried to the court, Cowell, J., and judgment rendered for the plaintiff, from which the defendant appealed for alleged errors in the rulings of the court.</p> <p>After the demurrer to the plea in abatement had been filed, the defendant moved for leave to amend, which was denied by the court ( Cowell, </.).</p> <p>The answer did not state in words any admission or denial, but merely alleged that the defendant was married prior to 1877 and ever since had remained married. A demurrer to this answer was sustained. The defendant filed a new answer, denying each allegation of the complaint. After trial to the court and judgment for plaintiff, the defendant appealed.</p> <p>The errors assigned are : (1) In refusing to allow the defendant to amend her plea in abatement; (2) in sustaining the plaintiff’s demurrer to the defendant’s plea in abatement; (3) in sustaining the plaintiff’s demurrer to the defendant’s answer of coverture.</p>

Suit to determine the validity and construction of the will of Elliott A. Upson of Bridgeport, deceased, brought to the Superior Court in Fairfield County and reserved by that court, Robinson, J., upon the facts stated in the complaint, for the consideration and advice of this court.

<p>Action to recover damages for wrongfully cutting trees upon the plaintiff’s premises, brought to the Court of Common Pleas in Fairfield County and tried to the court, Curtis J.; facts found and judgment rendered in favor of the plaintiff for $120, and appeal by the defendant for alleged errors in the rulings of the court.</p> <p>This action was brought on § 1345 of the General Statutes of 1888, which provides that every person “ who shall cut, destroy, or carry away any trees, timber, or underwood, standing or lying on the land of another, . . . without license of the owner, . . . shall pay to the party injured two dollars for every tree of one foot diameter; and for all trees of a greater dimension three times their value, besides two dollars ; . . . but when the court shall be satisfied that the defendant was guilty through mistake, and believed that the timber was growing on his own land, it shall render judgment for no more than its true value.”</p> <p>The amended complaint was as follows : “ 1. On the first day of May, 1898, the plaintiff was and ever since has been the owner of a piece of land in the said town of Monroe, bounded [description omitted]. 2. On said day the defendant, his servants and his agents entered upon said land and, without license from the plaintiff, cut ninety trees standing thereon. 3. Twenty-three' of said trees were of greater dimension than one foot in diameter and were reasonably worth one dollar apiece, and sixty-seven of said trees were under one foot in diameter. The plaintiff claims, by force of the statute in such cases provided, $192 damages.”</p> <p>The defendant in his first defense admitted the first paragraph of the complaint, and denied the second and third. His second defense was that the right of action for the cause stated in the complaint did not accrue within one year next before the commencement of the action.</p> <p>The plaintiff in reply demurred to the second defense, because “ (1) the cause of action set up in said complaint is not one to which the statute of limitations, fixing one year as the limit for bringing an action, applies; (2) the cause of action set up in said complaint is not one for a forfeiture upon any penal statute.” The court sustained the demurrer, and, upon the issue of fact, found for the plaintiff to recover for fifteen trees, each of a greater diameter than one foot and of the value of $2, and rendered judgment for the plaintiff to recover the sum of $120 damages and costs.</p> <p>The finding of facts shows that the defendant had a license from the plaintiff to go upon the piece of land described in the complaint, to cut and remove certain chestnut trees; that the defendant sent his choppers on to said land, with directions to cut the chestnut trees and all the other trees then growing, ten inches or over in diameter; the defendant gave this order well knowing that he had no right to cut any other trees than the chestnut trees; the choppers did cut fifteen other trees, which were subsequently removed.</p> <p>The defendant claimed that since he had a license to enter upon the said land to cut and remove certain chestnut trees, the cutting and removal of other trees at the same time was only a breach of said license, and that no liability arose therefore under the said statute. The court overruled this claim, and the defendant appealed.</p> <p>The reasons of appeal are (1) the sustaining of the said demurrer, and (2) the finding of the value of the trees to be $2, when the complaint alleges they were worth $1.</p>

Action to determine the validity and construction of the will of William Talbot of Greenwich, deceased, brought to the Superior Court in Fairfield County and reserved by that court, Robinson, J., upon an agreed statement of facts, for the consideration and advice of this court. The facts are as follows : 1.

Action of replevin, brought to the City Court of Danbury and tried to the court, Scott, J. ; facts found and judgment rendered for the plaintiff, and appeal by the defendants for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Action to recover for merchandise sold, brought 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 for $102 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 recover the amount of a judgment rendered against the plaintiff in a suit by one Ashborn for a personal injury sustained by him in the highway, and the expenses incurred in defending such suit, brought originally to the District Court of Waterbury and thence by the defendant’s appeal to the Superior Court in New Haven County and tried to the jury before Thayer, J.; verdict and judgment for the plaintiff for |8,900, and appeal by the defendant for alleged errors in…

Action to reform a recognizance given in substitution of an attachment, and to recover the amount thereof, brought to the Superior Court in New Haven County where the plaintiff’s demurrer to the second defense was sustained (Robinson■, J.') and the cause was afterwards tried to the jury before George W. Wheeler, J.; verdict and judgment for the plaintiff for $1,005, and appeal by the defendants for alleged errors in the rulings and charge of the court.

Indictment for murder in the first decree, brought to the Superior Court of New Haven County and tried to the jury before Ralph Wheeler, J.; verdict and judgment of guilty of murder in the second degree, and appeal by the accused for alleged errors in the rulings and charge of the court.

John M. Thayer, a judge of the Superior Court, and referred to a committee for a hearing of the facts; the judge accepted the committee’s report, overruling a remonstrance thereto filed by the plaintiff, and rendered judgment for the defendant to recover costs from which the plaintiff appealed for alleged errors in the rulings of the court. The facts as found by the trial judge are as follows :— 1.

; 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 the amount of a promissory note for $600, brought to the Court of Common Pleas in New London County and tried to the court, Noyes, J.; facts found and judgment rendered for the plaintiff for $175 damages, and appeal by the defendant for alleged errors in the rulings of the court.

Plea in abatement filed in this court at the opening of its March term, 1901, by the town of Winchester, one of the defendants, to an appeal of the other defendant, Sherwood, receiver, and referred, together with the answer of the appellant, to the Hon. Dwight Loomis, a State Referee, who found and reported the facts arising thereon and submitted the questions of law to this court.

Action to recover $400 damages for slander, brought to the City Court of New Britain where the defendant filed a plea in abatement for defective service, which the court, Burr, J., sustained and dismissed the case, and the plaintiff appealed for alleged errors in the rulings of the court. In this court the defendant filed a motion to dismiss the appeal for lack of jurisdiction.

<p>Action to recover damages for breach of contract to rebuild a dam destroyed by water, brought to the Superior Court in Middlesex County, where a demurrer to certain paragraphs of the answer was overruled (Prentice, </.), and the case was afterwards tried to the court, Poor abade, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court.</p> <p>The amended complaint alleged that the defendant’s firm had built a dam and wall for the plaintiff, and, before it had been inspected or accepted, requested payment of the final instalment of about $1,000; that in consideration of the receipt of that sum before inspection (which was paid), the defendant promised to “build another dam and wall on the same site and place as the one in question, which should be constructed in a lawful and workmanlike manner, in the event that said dam and wall already built should be carried away or destroyed by force of water within ten years ” thereafter. This agreement was, by reference, made part of the complaint, from which it appeared that if the dam failed to stand for ten years the defendant agreed to rebuild it at once, provided it was destroyed or damaged by water only. There was no express agreement to rebuild it in a lawful and workmanlike manner.</p> <p>The answer denied the allegations of the complaint, and averred that the plaintiff made the plans and specifications upon which the dam was originally built by the defendant’s firm, and that they had not been submitted to nor approved by a civil engineer, nor had the dam been inspected or approved, as by law required; that it was constructed in a locality where the life and property of others than the plaintiff were endangered through its insufficiency; and that the dam failed to stand because of such defective plans and specifications and by reason of the defective stone and other material which the plaintiff furnished and required the defendant to use.</p> <p>To this answer the plaintiff demurred, mainly upon the ground that the facts therein stated were immaterial and irrelevant, and did not deny any material allegation of the complaint. The demurrer was overruled, and the plaintiff then replied denying the averments of the answer. The defendant had a judgment and the plaintiff appealed.</p> <p>This statement appears in the finding: “I find that the contract of December 25th, 1895, and that of April, 1896, was to build and rebuild a dam in a locality where life and property of other persons than the plaintiff were endangered, and that the plans and specifications for said dam had not been submitted by the plaintiff to a member of the state board of civil engineers in accordance with the statutory requirements of this State. Although these allegations are found substantially proven and true, yet I am of the opinion that they are manifestly insufficient as a defense, and that all the evidence offered in this connection was immaterial.”</p>

•Action to recover damages for breach, of contract, brought to the court of Common Pleas for Litchfield County and tried to the court, Welch, J.; facts found and judgment rendered for the plaintiff for $180, and appeal by the defendant for alleged errors in the findings and rulings of the court.

<p>A residuary life legatee is entitled to the full net income of tbe bequest from tbe date of the testator’s death, unless the will fixes a different time for the commencement of such life use.</p> <p>A testatrix gave the residue of her estate to the defendant in trust and directed it to pay over the net income, semi-annually, to the plaintiff during her life, “ the first payment to be made six months after the trust fund shall be paid to said trustee by my executors.” Held that the words quoted fixed the time of payment and not the time when the bequest vested in point of right, and that the plaintiff was entitled to the income accruing after the death of the testatrix and until the residue was turned over by the executors to the trustee.</p> <p>This income was accounted for by the executors in their final administration account, and was included in the residue transferred by them to the trustee under order of the Court of Probate. Held that the action of the court was not an adjudication that the income in question was a part of the principal of the trust fund, and therefore the plaintiff, by failing to appeal, had not lost her right to recover such income from the defendant when the first payment became due from it by the terms of the will.</p>

Action to foreclose a mortgage of real estate, brought to the Superior Court in Hartford County and tried to the court, Elmer, J.; facts found and judgment rendered in favor of the plaintiff, and appeal by the defendant for alleged errors in the rulings and findings of the court.

Suit to determine the validity and construction of the will of Thomas Hollister of Bristol, deceased, brought to the Superior Court in Hartford County and reserved by that court, Prentice, J., upon the facts alleged in the complaint, for the consideration and advice of this court.

Action- by an indorsee to recover the amount of a promissory note, 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, and appeal by each of the defendants for alleged errors in the rulings and findings of the court.

Action against a deputy-sheriff to recover the penalty provided by statute for charging illegal fees, 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 for $450 damages, and appeal by the defendant for alleged errors in the rulings and findings of the court.

American Exchange National Bank of Chicago against the insolvent estate of H. Drnsilla Mitchell of Bristol, taken by the trustee in insolvency to the Superior Court in Hartford County and tried to the court, Rorabaek, J.; facts found and judgment rendered for the claimant, and appeal by the trustee for alleged errors in the rulings and findings of the court. This is the same case reported in 71 Conn. 708.

Action to foreclose what was claimed to be a chattel mortgage, 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 defendant, and appeal by the plaintiff for alleged errors in the rulings of the court.

Vivian of Norwich, deceased, taken to the Superior Court in New London County and tried to the jury before Thayer, J.; verdict and judgment sustaining the will, and appeal by the contestants for alleged errors in the rulings of the court upon questions of evidence. The reasons of appeal were that the paper was not duly-executed as a will, and also the use of undue influence by the wife of the alleged testator, who was the sole legatee.

Writ of error to reverse a judgment rendered by the District Court of Waterbury, Cowell, J., upon the ground that the action was not within the jurisdiction of said court. The judgment from which this writ of error was brought was rendered in the District Court of Waterbury in an action of interpleader, wherein the defendant in error, Mary F. Sear man, was plaintiff, and the plaintiff in error and the other defendants in error were defendants.

Action to recover damages for fraud, brought to the Superior Court in New Haven County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff for $4,315, and appeal by the defendant for alleged errors in the rulings of the court.

Applications in the nature of appeals from the action of the mayor of the city of New Haven in removing the applicants from the office of police commissioners, brought to the Superior Court in New Haven County and tried together to the court, Ralph Wheeler, J.; facts found and judgment rendered in each case approving and confirming the action of the mayor, and appeal by the respective applicants for alleged errors in the rulings and findings of the court.

Action to enforce the specific performance of a contract to sell and deliver shares of stock, brought to the Superior Court in New Haven County where a demurrer to the complaint was overruled… Held: and the stock so issued was to be subsequently transferred in the manner stated in the written agreement thereafter executed by the plaintiff and said administrator, and said corporation was to assume the payment of the debts of said partnership.

, upon motion of the appellees, for lack of jurisdiction, and appeal by the original appellants for alleged error of the court. The case is sufficiently stated in the opinion.

Action by the payee to recover the amount of a non-negotiable note made by a third person and indorsed in blank by the defendant prior to its delivery, brought to the Superior Court in Fairfield County where a demurrer to the complaint was overruled (Thayer, J.) and the cause was afterwards tried to the jury before Robinson, J.; verdict and judgment for the plaintiff, and appeal by the defendant for alleged errors in the rulings and charge of the court.

; facts found and judgment rendered affirming the action of the county commissioners, and appeal by the remonstrant for alleged errors in the rulings of the court. Michael H. Bracken had been duly licensed to sell intoxicating liquors in the town of Fairfield, for the year ending October 31st, 1901. Bracken died December 22d, 1900.

<p>Action by the receiver of an insolvent insurance company to recover the amount of a promissory note given for shares of its capital stock, brought to the Superior Court in New Haven County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff for $976, and appeal by the defendant for alleged errors in the rulings of the court.</p> <p>The case is sufficiently stated in the opinion.</p>

Action to restrain the defendants from interfering with or preventing the plaintiff from clearing a watercourse and natural drain through the defendants’ land, and from filling up the same or otherwise obstructing the flow of surface water from a highway, brought to the Court of Common Pleas in Litchfield County and tried to the court, Bradstreet, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants for alleged errors in the rulings of the…

Action to recover the amount of liquidated damages in a bond given by the defendants, brought to the Superior Court in Hartford County where a demurrer to the answer was sustained in part (Prentice, J.) and the cause was afterwards tried to the court, Bor aback, J.; facts found and judgment rendered for the plaintiff for the full amount ($2,500), and appeal by the defendants for alleged errors in the rulings of the court.

Action in the nature of ejectment claiming possession of a tract of land and damages, brought to the Superior Court in New London County and tried to the court, Robinson, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiffs for alleged errors in the rulings and findings of the court.

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, brought to the Superior Court in New Haven County and heard in damages to the court, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff for $4,000, and appeal by the defendant for alleged errors in the rulings and findings of the court.

<p>Action by the receiver of an insolvent life insurance company to recover damages for the wrongful depletion and diversion of its mortuary fund, brought to the Superior Court in New Haven County and tried to the court, Rorabaelc, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff for alleged errors in the rulings and conclusions of the court.</p> <p>The complaint, containing’ eight counts, alleged that on eight different occasions in 1896 and 1897 the defendants, who were officers and directors of the company,—said Doherty being secretary and tbe defendant Platt being president, and later vice-president of the company,—wilfully and wrongfully drew from the mortuary fund of the company a sum of money for the payment of a mortuary claim, knowing that the whole of said sum was not required to satisfy the claim ; that in each case the amount paid the beneficiary was less than the sum so drawn, and that the defendants failed to return such balance to the mortuary fund or to the treasury, and that it was wholly lost to the company.</p> <p>The defendant denied the principal allegations of the complaint, and by a special defense alleged, in substance, that the balances in question had been paid out for the benefit of the company in the settlement of said death claims. These averments were denied by the reply.</p> <p>It was found that the mortuary fund, which was required to be kept as a separate fund for the payment of death claims, had been insufficient to meet the demands upon it; that during the period in question it was largely indebted to the general, or expense or dividend fund, and that there was no money in the mortuary fund; that in December, 1895, with the approval of the board of directors, the defendants made an agreement with one Sherman to investigate and compromise certain mortuary claims which were thought by the company to be unjust, Sherman to receive one half the amount saved and the company to pay all expenses : that under said agreement a number of claims, including those in suit, were settled at a total saving of about $23,000, one half of which was paid to Sherman, those in suit being settled by payment of the sums named in the complaint; that in each case the full amount of the policy was charged to the mortuary fund, and entered upon the books of the company and in the sworn report to the insurance commissioner, as paid to the beneficiaries. The trial court found that the differences between the amounts charged to the mortuary fund and the sums paid to the beneficiaries, were expended in paying the commissions and other expenses of the adjuster and other legitimate claims connected with the mortuary fund, and were not lost to the company; that the defendants received no money or benefit from the transactions, and that the balances so expended, as well as the sums paid to the beneficiaries, were paid from the expense fund of the company.</p> <p>It appeared that the differences between the amounts charged to the mortuary fund and the sums paid to the beneficiaries, were not entered upon the regular boohs of the company, nor the expenditures of such balances. A part of such expenditures were made by checks of the company, and a part of these balances passed into the hands of Doherty, who had the special management of such settlements, and were paid out by him in cash or by his own checks. To prove that said balances were paid, as claimed, for the benefit of the company, the defendants offered in evidence a book labeled “ Sherman Mortuary Settlements,” and which Doherty testified was kept by him in his desk in the company’s office as an account of mortuary settlements, and was taken away by him rvhen he left the employ of the company in 1898, and that the pencil entries showing the amount drawn from the mortuary fund, the amount paid back and credited to the divident fund, the amount paid to the beneficiary, and the expenditure of the balances after settlement, were made by him at the time of the settlements and payments referred to. Plaintiff objected to the admission of the book in evidence, upon the grounds, among others, that the entries were not made upon a book of the company and in the usual course of business, and that they were contradictory of the entries upon the company’s books and of the sworn returns of the defendants to the insurance department. The court admitted the book in evidence, and upon these facts, against the plaintiff’s claim, rendered judgment for the defendants.</p>

<p>In a suit by the receiver of an insurance company against its former officers for wrongful aud negligent conduct in engaging and retaining a grossly careless and imprudent agent, it was held:—</p> <p>1. That the inexperience of the defendants in the business of life insurance did not excuse them from exercising such care and skill as ordinarily prudent management required.</p> <p>2. That the directors of such a corporation could not give away its rights by ratifying the negligent omissions of duty of its corporate officers.</p> <p>3. That a custom of life insurance companies to accept notes in payment of premiums was no justification to the defendants for accepting from this agent, under a contract with him calling for cash remittances, notes as the equivalent of cash.</p> <p>4. That it was irrelevant to show that the character of the business written by this agent was as good as that written by the other agents of the company; or that the percentage of losses on policies negotiated by him was no greater than that customary on policies negotiated by other companies; or that it was the custom of reliable insurance companies to make cash advances to agents upon their renewal interest in business secured; and that it was immaterial to show that the indebtedness of the agent was to the shareholders and not to the policy-holders, the receiver standing for both.</p> <p>Where a contract between an insurance company and an agent makes the company’s ledger account with him conclusive at all times as to his indebtedness, such account will be held conclusive as between the officers who made the contract and the company, in a suit against them for negligence in relation to such agency, when the account was kept under their direction and there is no clear proof, that some proper entry has been omitted.</p>

<p>Action to recover damages for personal injuries claimed to have been caused by a defective sidewalk, brought to the District Court of Waterbury and thence by the defendant’s appeal to the Superior Court in New Haven County and tried to the court, Elmer, J.; facts found and judgment rendered for the plaintiff for nominal damages only, and appeal by her for alleged errors in the rulings of the court.</p> <p>It appears from the finding of the trial court that on July 20th, 1899, the plaintiff, while exercising due care, was injured through a defect in a traveled road situate in the defendant city. This road was known as Brewster Street. It had not been laid out as a highway by the city authorities in accordance with the city charter. The plaintiff claimed that Brewster Street had become by dedication a public highway prior to the accident.</p> <p>Upon the trial the court made the following rulings to which the plaintiff duly excepted: First, excluding evidence offered by the plaintiff, that said street, prior to the accident, had become a highway by dedication, and that said city was therefore in duty bound to keep it in repair; second, excluding evidence that the city had ordered a water main laid through said street and awarded a-contract for building the same; third, excluding evidence showing that the street was duly laid out a year after the accident; fourth, excluding evidence that the land within Brewster Street had been given by one Platt for use as-a public highway, and had been continuously used by the public as such from 1886 to the date of the accident.</p> <p>The appeal assigns as error the above rulings.</p>

<p>Action to determine the validity of certain mortgages held by the defendants, brought to the Superior Court in New Haven County and referred to a committee by whom the facts were found; the court, Sliumway, J., accepted the report of the committee and reserved the questions of law arising thereon for the consideration and advice of this court.</p> <p>On November 22d, 1900, the stockholders of the Chapman Manufacturing Company voted to institute an action against that corporation, on the ground of its insolvency, for the appointment of a receiver. The writ in such action was issued and served, and on the following day the plaintiff was appointed temporary receiver and subsequently became permanent receiver. This action is brought to set aside two mortgages made by tbe corporation. One, spoken of as Exhibit 1, was made to Isaac C. Lewis, to secure a promissory note for $10,800, on March 81st, 1891, and recorded on November 22d, 1900; it is now held by his children, the defendants, Henry J. Lewis, Martha E. Fales, and Kate A. L. Chapin. The other, spoken of as Exhibit 2, was given to Agnes D. Squire on February 23d, 1897, to secure promissory notes amounting to $4,000, and was recorded on November 22d, 1900. This mortgage was a substitute for one given to the same mortgagee on May 28th, 1894, which was also a substitute for one given to her father, George R. Curtis, prior to March 31st, 1891, which latter mortgage came to Mrs. Squire upon her father’s death; the mortgage of 1897 is now held by the defendant Allen B. Squire, administrator on the estate of said Agnes D. Squire.</p> <p>The plaintiff claims a judgment setting aside these two mortgages as against him.</p>

Action to restrain the defendants from removing buoys and stakes marking the boundary of the plaintiff’s oyster-ground, and for damages, brought to the Court of Common Pleas in New Haven County'and tried to the court, Hubbard, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff for alleged errors in the rulings and findings of the court.

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, Thayer, •/.; facts found and.judgment rendered for $3,000, and appeal by the defendant for alleged errors in the rulings and findings of the court. The appellant also filed an application to rectify the finding of the trial court.

Action to recover the amount of a replevin bond, brought to the Court of Common Pleas in New Haven County and tried to the court, Hubbard, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendants for alleged errors in the rulings of the court. The plaintiff company, in November, 1898, brought suit against one Meyer, and gave the writ and complaint therein to Speigel, its coplaintiff, as deputy-sheriff, to serve.

<p>Action to recover the salary or commissions prescribed by law for the collector of taxes of the city of Bridgeport, brought to the Superior Court in Fairfield County where demurrers to the complaint filed by the respective defendants were overruled (Ror aback, J.'), and the cause was subsequently reserved by the court, Robinson, J., upon a finding of facts, for the consideration and advice of this court.</p> <p>The material facts found are in substance these : McElroy filled the office of tax collector of the city of Bridgeport for the term ending April 10th, 1899, and was a candidate for election for the term succeeding this, as was also the plaintiff. As a result of the election in 1899, McElroy was regularly declared elected, and in good faith believing he had been so elected he qualified anew and entered upon the duties of his office for the succeeding term.</p> <p>The plaintiff made no demand for the office at this time, nor did he qualify for it, but he at once brought suit in the Superior Court to determine whether he had been elected, and upon a full hearing that court decided against him. He then appealed to the Supreme Court of Errors, and that court set aside the judgment of the Superior Court, and judgment was ultimately rendered in his favor. Immediately thereafter, to wit, on the 8th of August, 1899, he qualified and took possession of said office.</p> <p>McElroy, as an officer de facto, occupied the office from April 10th, 1899, to August 8th of the same year, and during this period he collected taxes to the amount of $636,670.65. For twenty years it had been the invariable custom in said office to retain from the taxes collected the fees due to the collector therefor, and to turn over to the city the amount collected, less said fees; and McElroy, as defacto incumbent of said office, followed that custom. These last-mentioned facts were found upon evidence to which the plaintiff objected, and the question of its admissibility is one of the questions reserved.</p> <p>No objection to the course thus pursued by the tax collectors was ever made by the city or any one else.</p> <p>McElroy, as collector defacto, retained in this way, and still retains, as his compensation for his work, the sum of $4,775.02, which was the percentage allowed to the collector bylaw. The amount of taxes collected for the entire year aforesaid was $755,009.45, and the percentage due the collector thereon was $5,662.56. The city has never paid the plaintiff this sum, nor has McElroy paid to the plaintiff any of the money retained by him as aforesaid, although due demand was made upon him therefor. McElroy, as de facto collector, made out all the tax bills for the year 1899, about 9,000 in all, a work of some magnitude, a portion of the benefit of which inured to the plaintiff after he took the office. It is the duty of the collector to enter upon the rate book all taxes paid. It has been the custom of the office to enter such payments first upon a blotter, and afterwards upon the rate book. The payments made to McElroy between April and August, 1899, about 8,000 in number, were entered by him on the blotter but not on the rate book. The entries of these payments upon the rate book were made by the plaintiff. It took about two months to do this, a longer time than it took to make out the tax bills. McElroy performed all the other duties of said office during the period last aforesaid. The ordinances of the city provide that the annual compensation of the tax collector shall be “ for all moneys collected three quarters of one per cent.” Neither the city nor McElroy had any reason to believe that MeElroy had not been legally re-elected to the office of tax collector; and whatever they did in this matter was done not to forestall or defraud the plaintiff, but in good faith and in the belief that MeElroy was entitled to hold the office. Between the time he qualified and the bringing of this action the amount due the plaintiff for collections was $887.54, which has not been paid. The city has not demanded from MeElroy the above mentioned sums retained by him. The city charter provides that the tax collector shall hold his office till his successor is chosen and qualifies. MeElroy never presented a claim for the money retained by him as aforesaid, as required by the city ordinances in the case of claims made against the city; nor has the city paid MeElroy anything for his services as collector between April 10th and August 8th, 1899, “ except in so far forth as the retention of the money collected b\ said MeElroy as hereinbefore set forth may operate as such payment.” The plaintiff claims compensation for the entire year ending April 10th, 1900. From August 10th, 1899, to April 10th, 1900, the plaintiff gave his entire time to the duties of said office, and also of necessity employed a deputy to whom he paid $25 per week, and another assistant to whom he paid $18 per week.</p>

Actions to foreclose mortgages of real estate, brought to the Superior Court in Fairfield County and tried to the court, Robinson, J.; facts found and judgment rendered for the plaintiff in each case, and appeal by certain of the defendants for alleged errors in the rulings of the court.

Action to recover the contract price for work done and materials furnished, and also for extras, brought to the Superior Court in Fairfield County and tried to the court, SJmmway, J.; facts found and judgment rendered for the plaintiff for -11,156, and appeal by the defendant for alleged errors in the rulings of the court. The first count in the complaint was on a written contract, and alleged due performance.

Action to recover damages for negligence in setting fire to and burning the plaintiff’s store and dwelling-house, and their contents, brought to the Superior Court in New Haven County and tried to the jury before George W. Wheeler, J. ; verdict and judgment for the plaintiff for $9,178, and appeal by the defendant for alleged errors in the rulings and charge of the court. The case is sufficiently stated in the opinion.

<p>Appeal from an order and decree of the Court of Probate for the-district of Norwich approving a certain written instrument as the last will and testament of Lucy M. Wait of Norwich, deceased,- taken to the Superior Court in New London County and tried to the jury before Thayer, J.; verdict and judgment sustaining the will, and appeal by the contestant for alleged errors in the rulings of the court in excluding certain testimony.</p> <p>Upon the trial, the issues being as to due execution, mental capacity, and the exercise of undue influence by one Walker,— one of the three principal legatees under the will—said Walker was called as a witness by the appellant, who was the sole heir at law and not named in the will, and testified that about an hour before the death of the testatrix, Lucy M. Wait, he called Dr. Tingley by telephone to attend her, and had a talk with the doctor over the telephone. Dr. Tingley was then called to the stand by the appellant and testified as to his visit, what he found, and the testatrix’s death. Thereupon appellant’s counsel, for the purpose of showing the relations existing between Walker and the testatrix, and the confidential nature of his relations and agency to her, asked the witness the following question: “ Please state, Doctor, what Albert A. Walker said to you when he called you on the telephone to come to the testator.” Upon objection the question was excluded.</p> <p>The appellant also called one Bowen to testify as to the use of alcoholic liquors by the testatrix, and he testified that he never knew her to use such liquors. Counsel for the appellant thereupon asked this question of the witness: “Have you, Mr. Bowen, stated regarding her (the testatrix) that she drank whiskey and brandy to an extent that nobody could' stand it ? ” The question was objected to by counsel for the appellee. Counsel for the appellant thereupon stated to the court that he was surprised by the testimony that the witness had given, that it was contrary to what the witness had stated in preparation for the trial, and contrary to what the appellant had reason to believe he would testify. The counsel stated that he desired to pursue the question to show that the witness had made a different statement, but not thereby to prove the fact of the use of intoxicating liquors by the testatrix. The evidence was excluded.</p> <p>The appellant called one Sarah Bosworth to testify to her knowledge of the use of alcoholic liquors by the testatrix. In reply to a question by the appellant’s counsel, this witness testified that she did not know of the use by the testatrix of alcoholic liquors. Later in the trial the witness was recalled by the counsel for the appellant, and the following ensued: “ Mr. Shields: ‘Your honor, I called this witness yesterday with reference to the use of alcoholic liquors by Lucy M. Wait, and I called her upon information that came to me directly from reliable sources of statements that she had made that she knew Lucy Wait drank intoxicating liquors; and further, your honor, since the witness left this stand she has said in the court room that she has picked this woman (Lucy Wait) out of a gutter drank, but she was not going to tell it in court.’ Q. Now Mrs. Bosworth, have you stated that Lucy Wait to your knowledge had used and drank whiskey ? A. No, sir.” Upon objection counsel was permitted to put leading questions and to inquire as to her knowledge upon the subject of the testatrix’s use of liquors and instances of apparent intoxication. Having received unsatisfactory replies, he asked if she knew Warren Keith. The witness having replied in the affirmative, he asked: “ Have you stated to him that you had picked her up out of the gutter drunk, but you were not going to tell it in court? ” To these questions objection was made and sustained, and the questions were excluded.</p> <p>The appellant afterwards called Warren P. Keith, and having asked some preliminary questions, put to him the following question: “ Since Sarah Bosworth was on the witness-stand here yesterday, has she made to you a statement that she picked Lucy M. Wait up out of the gutter drank, but was not going to tell it in court?” This question, as stated by counsel, was asked for the purpose of showing by the evidence of this witness their surprise at the testimony of Mrs. Bosworth, and a different statement by said Bosworth from her testimony, but not to prove the fact that Lucy M. Wait used intoxicating liquors. Upon objection the question was excluded.</p> <p>Exceptions were taken to all the above rulings, which are made the only reasons of appeal.</p>

Action to recover damages for personal injuries claimed to have been caused by a defective sidewalk, brought to the Superior Court in Tolland County and tried to the jury before Ralph Wheeler, J.; verdict and judgment for the plaintiff for $4,000, and appeal* by the defendant for alleged errors in the rulings and charge of the court. The case is sufficiently stated in the opinion.

<p>After the death of A, her husband, before his appointment as administrator on her estate, exchanged 'certain western mortgage bonds owned by her, known as Krom bonds, for others known as Durley bonds. The Durley bonds were inventoried by him as a part of her estate, were retained by him during his life as statutory trustee, and at his death were delivered to her administrator, who retained and made no effort to return them. In an action for the conversion of the Krom bonds, brought by the wife’s administrator against her husband’s executor, it was held that the court was justified in assuming that the plaintiff had received the Durley bonds as a reparation, pro tanto, for the conversion of the Krom bonds ; and therefore properly charged the jury that any benefit which the wife’s estate had received from the Durley bonds should be deducted from the value of the Krom bonds at the time of the conversion, in determining the damages.</p> <p>In his charge the judge stated that in his opinion both issues of bonds were fraudulent schemes to swindle eastern investors, but that if so, the parties to the suit had nothing to do with it. Held that the remark did not appear to have been prejudicial to the plaintiff, and furnished no ground for a new trial.</p> <p>The court excluded a question asked by the plaintiff—what A paid for the Krom bonds—because it had not appeared when she bought them. It afterwards appeared that she bought them nearly two years before the conversion, and the question was not renewed. Held that the plaintiff had no just ground of complaint.</p> <p>Where no actual damage is found by the jury to have resulted from a technical conversion of property, the plaintiff is not injuriously affected by a charge, even if erroneous, limiting his right of recovery to one of two defendants.</p> <p>A witness having testified on direct examination as to the value of certain real estate, was asked on cross-examination if he knew at what amount the property had been assessed for taxes. Held inad missible, either to show the value of the property or the witness’ knowledge of the premises.</p>

Action in the nature of an appeal from the doings of the board of relief of Middletown in refusing to erase from the tax list of said town the bank building of the plaintiff, brought to the Superior Court in Middlesex County where a demurrer to a portion of the answer was sustained {Prentice, J.'), and the cause was afterwards tried to the court, Thayer, J. ; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged error in the conclusion…

Writ of error returnable before the Superior Court for Hartford County, to reverse an appraisal and award of damages for land taken for public use by the defendant city, made by appraisers appointed by a judge of that court, and recorded by its clerk. The Superior Court ( Oase, JJ) ordered the cause erased from the docket for want of jurisdiction and the plaintiffs in error appealed to this court.

Action to recover the amount of a promissory note made by a third person to the order of the plaintiff and indorsed by the defendant prior to its delivery, brought to the Court of Common Pleas in Hartford County and tried to the court, Case, J!, upon a demurrer to the plaintiff’s second reply; the court sustained the demurrer and rendered judgment for the defendant, and the plaintiff appealed for alleged errors in the rulings of the court.

Suit to determine the construction of the will of Nancy D. Rhodes of Wethersfield, deceased, brought to the Superior Court in Hartford County and reserved by that court, Oase, J., upon a finding of facts, for the consideration and advice of this court. The third and fourth clauses of the will, concerning which the questions in the case arise, read as follows: “ Third.

; facts found and judgment rendered reversing the action of the Court of Probate, and appeal by the heirs at law of the intestate for alleged errors in the rulings of the court. The following facts appeared by the finding of the Superior Court. Gustavus D. Bates insured his life in 1868 in the Mutual Life Insurance Company of New York.

Action by the receiver of an insolvent life insurance company to recover the amount of a loss claimed to have been sustained by it on account of the negligence of the defendants in making a loan of its funds in violation of law, brought to the Superior Court in New Haven County and tried to the court, Rorabach, J. ; facts found and judgment rendered for the defendants, and appeal by the plaintiff for alleged errors in the rulings of the court.

Action to recover damages for personal injuries claimed to have been caused by a defective highway bridge over a railroad track, brought to the Superior Court in Litchfield County where the demurrer of the town of Winchester to the receiver’s cross-complaint was sustained (George W. Wheeler, Ji), and the issues between the other parties were tried to the jury before Shumway, J.; verdict and judgment for the plaintiff to recover $500 damages of the receiver, and judgment for…

<p>Application for a reappraisal of damages to lots adjoining a highway, caused by a change of grade, brought to the Son. William T. Elmer, a judge of the Superior Court, and referred to Arthur L. Shipman, Esq., who heard and reported the facts. Said judge accepted the report of the committee, found the facts to be as stated therein, and rendered judgment for the defendant, from which the plaintiff appealed for alleged errors in the rulings of the judge.</p> <p>The case is sufficiently stated in the opinion.</p>

Action to recover the balance of a merchandise account guaranteed by the defendant, brought to the Court of Common Pleas in Hartford County and tried to the court, Peek, J.; facts found and judgment rendered for the plaintiff for $256, and appeal by the defendant for alleged errors in the rulings and findings of the court.

<p>Action to foreclose subcontractors’ liens for services rendered in tbe construction of a dwelling-house, brought to the Court of Common Pleas in Hartford County and tried to the court, Peck, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiffs for alleged errors in the rulings of the court.</p> <p>The defendant Herzer entered into a written contract with a builder named Hamilton for the erection of a dwelling-house upon land owned by himself and wife jointly. The contract price was to be $4,100, payable in several instalments as the work progressed. The final payments provided for were $1,100 when complete, and $100 reserved for thirty days after completion. Two days after the execution of the contract Herzer, at the request of Hamilton and to enable the latter to procure the needed lumber, signed a written order to the Hartford Lumber Company, in the following terms:</p> <p>“ Hartford, Conn., March 26th, 1900.</p> <p>“ The Hartford Lumber Company,</p> <p>“Hartford, Conn.</p> <p>“ Dear Sirs: Deliver to E. E. Hamilton such lumber as he shall require for the construction of my house on May Street, and charge the same to me. Credit such payments as E. E. Hamilton shall make on the account, and advise me from time to time of the balance due.</p> <p>“ Theodore Herzer.”</p> <p>It was a week or more after the execution of this writing that the first work was done upon, or material furnished to, the house by any subcontractor.</p> <p>Upon the strength of said order, which Hamilton presented 'to the lumber company, it furnished the lumber for the construction of the house. After Herzer had made all save the two final payments, Hamilton abandoned work upon the house and left it uncompleted. Herzer, after due notice, completed it. When Hamilton ceased work a balance of $776.52 was due the lumber company for lumber furnished under the order. More than sixty days later Herzer paid this balance to the lumber company.</p> <p>The plaintiffs were subcontractors under Hamilton, to whom are due various sums for work done upon the house, or for materials furnished therefor, prior to his abandonment. Each of said subcontractors has duly perfected his lien in accordance with the statute.</p> <p>The plaintiffs contend that Herzer was not, as respects their liens, entitled to credit the amount of this payment to the lumber company as a payment upon the contract price.</p>

Action in three counts to recover damages for wrongfully evicting the plaintiff, for forcibly removing her household goods, and for unlawfully seizing and detaining a portion thereof, brought to the Court of Common Pleas in Fairfield County where certain paragraphs of the answer were stricken out upon motion of the plaintiff and the cause was afterwards tried to the jury before Curtis, J.; verdict and judgment for the plaintiff for $50 damages, and appeal by the defendants…

decided March 5th, 1902. Action to recover the possession of certain real estate and the rents and profits thereof, brought to the Court of Common Pleas in Fairfield County and tried to the court, Curtis, 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 to recover the amount of a loss under a policy of fire insurance, brought to the Superior Court in Fairfield County where successive demurrers to portions of the reply were sustained (Thayer and Robinson, 7s.), and subsequently judgment was rendered (Ralph Wheeler, I.') for the defendant, from which the plaintiff appealed for alleged errors in the rulings of the court. This action was brought upon a policy of insurance against fire issued to Susan Anderson.

Action to determine the validity and construction of the will of John Griffin of Newtown, deceased, brought to the Superior Court in Fairfield County and reserved by that court, Robinson, upon a finding of facts, for the consideration and advice of this court. The material parts of the will are in substance these: George Griffin and Bruce N. Griffin, sons of the testator, are made executors and trustees under the will.

Action to quiet and settle tlie title to certain real estate, brought to the Superior Court in New Haven County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered confirming title in the plaintiff, subject to a mortgage for $500 given in 1871 and held by certain of the defendants, and appeal by the plaintiff for alleged errors of the court in sustaining the validity of said mortgage.

Indictment for murder in the first degree, brought to the Superior Court in New Haven County and tried to the jury before Elmer, J. ; verdict and judgment of guilty of murder in the second degree, and appeal by the accused for alleged errors in the rulings and charge of the court. The case is sufficiently stated in the opinion.

Action to recover for whiskey sold and delivered to the defendant’s intestate, brought 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. The complaint and bill of particulars allege a sale by the plaintiff, in the State of New York, of two barrels of whiskey, to the defendant’s intestate, one James P. Burke.

Action to recover damages for personal injuries claimed to have been caused by the negligence of the defendant, brought to the Superior Court in New Haven County and heard in damages to the court, Ralph Wheeler, J.; facts found and judgment for the plaintiff for nominal damages only, and appeal by him for alleged errors in the rulings of the court, The case is sufficiently stated in the opinion.

Action to recover damages for breach of contract to deliver four cows claimed to have been purchased by the plaintiff, brought to the City Court of New Haven and tried to the court, Bishop, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Action to recover damages for neglect to seasonably deliver certain merchandise purchased by the plaintiff, brought to the City Court of New Haven and tried to the court, Bishop, J. ; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court. The complaint alleges : 1. The sale to the plaintiff of a lot of goods for $41 on February 26th, 1901. 2.

Action of replevin for the possession of a lunch wagon and its fixtures, brought to the Court of Common Pleas in New Haven County and tried to the court, Hubbard, J.; facts found and judgment rendered in favor of the defendant for a return of the property and for $281 damages, and appeal by him for alleged errors in the rulings and findings of the court upon the question of damages. The ease is sufficiently stated in the opinion.

Action to recover damages for a collision in the highway, claimed to have been caused by the defendant’s negligence, brought 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 and charge of the court.

Action to set aside a deed of real estate and to recover the rents and profits thereof, brought to the Superior Court in New Haven County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants for alleged errors in the rulings and findings of the court. The case is sufficiently stated in the opinion.

<p>Action by an employee to recover damages for the loss of an eye claimed to have been caused by the negligence of the defendant in using a defective stone-crusher, brought to the Superior Court in New Haven County and tried to the jury before George W. Wheeler, J.; verdict and judgment for the plaintiff for $1,500, and appeal by the defendant for alleged errors in the charge of the court.</p> <p>The complaint alleged that defendant was the owner of a stone-crusher used to crush stone for macadamizing the streets of the city of Waterbury, and that defendant also sold stone, crushed by such crusher, at a profit; that on the 12th of July, 1894, plaintiff was in the employ of the defendant, feeding stone into said crusher, when, by reason of a broken tooth in said crusher and of the want of a proper covering for the crusher, which defects were known to the defendant’s superintendent and foreman in charge of said machine—the latter of whom had promised the plaintiff that new teeth and a proper covering would be furnished for said machine so as to make it safe—the plaintiff was injured by a stone thrown by said machine while he was feeding the same, which struck him in the right eye and wholly destroyed the sight thereof.</p> <p>The defendant alleged in its second defense that at the time of the accident it was engaged in the performance of a public duty imposed upon it by statute, in repairing certain highways within its limits, by macadamizing them, which work was being done in accordance with the provisions of its charter, and under the superintendence of the street inspector ; that said inspector had employed a foreman to take charge of the stone-crusher and the crushing of the stone, and that such foreman, with authority from said inspector, had employed the plaintiff, who, at the time of the accident, was actually employed at such work in the town of Cheshire.</p> <p>The court having overruled the plaintiff’s demurrer to this answer, these allegations were denied by the plaintiff’s reply.</p> <p>Upon the trial it appeared that the stone-crusher, by reason of a defect in which the plaintiff was injured, was owned by the defendant, and, at the time of the accident, was being used by the defendant, in the town of Cheshire, ten miles from Waterbury, in crushing stone to be transported by rail to Waterbury and by teams to a street which was being macadamized, and there used in macadamizing said street. The plaintiff, it appeared, was employed by the defendant’s street inspector, called superintendent of streets, who had the general superintendence of this work and the care and maintenance of streets, and was put to work on the stone-crusher by the foreman, who, subject to the superintendent, had charge of the work of stone-crushing at Cheshire. At the time he was injured he was employed in the work of crushing stone which the defendant intended to use and did use in the macadamizing of one of its streets;</p> <p>There seems to have been no evidence that the defendant, prior to the accident, ever sold the stone crushed by said machine, or used it for any other purpose than in macadamizing its streets.</p> <p>The defendant requested the court to charge, in substance, that the city of Waterbury could not be held liable for any negligence on the part of its officers or servants who were in charge of the work of crushing the stone for the purpose of repairing its streets, because in doing said work the defendant was performing a public governmental duty imposed upon it by the State.</p> <p>The court charged the jury, in part, that the care and maintenance of its streets by the defendant was a governmental duty, and that if the preparation of the stone used in the repair of the street was work done in the performance of such governmental duty, there could be no recovery; that “the crushing of stone intended to be used and subsequently used in macadamizing a street ten miles away was not work done in the care and maintenance of the street. Such work is confined to the work done on the street itself, or in bringing to the street the necessary materials and instrumentalities used in the work; it has no relation to the manufacture of material, or instrumentality, or the use of machinery for that manufacture.”</p> <p>•It is provided by an Act of the legislature (made a public act) that the city of Waterbury shall be a highway district; that its court of common council shall have the sole and exclusive authority and control over all streets within the limits of the city, and the sole and exclusive power to lay out and make new streets, and to alter and repair streets, and the like power to order the paving, macadamizing, or other improvement of any street or highway within the city; and that said court of common council, upon the execution of any order for the paving, macadamizing or other improvement of such street, may assess a reasonable part of the expense thereof upon the persons whose property is specially benefited thereby. The Act further provides for the appointment, by the board of aldermen and the court of common council, of a board of street commissioners, who are to have the general superintendence and control over the streets, cause the same to be kept in good condition and repair, execute all orders of said court in reference to the streets, and who are empowered to employ, in the name and behalf of the city, a street inspector, a street surveyor, and such other persons as may be necessary for the performance of the duties imposed upon said board. 7 Special Laws, pp. 217-219.</p>

Action to determine the construction of the will of Charles E. Thompson of New Haven, deceased, brought to and reserved by the Superior Court in New Haven County, Gager, J., upon a finding of facts, for the consideration and advice of this court. The material portions of the will are as follows : “First. I give and bequeath absolutely to my wife, Anna M. Thompson, of said town of New Haven, the sum of thirty thousand dollars. Second.

Action to recover damages for personal injuries resulting in the death of the plaintiffs’ intestate, claimed to have been caused by the negligence of the defendants, brought to the Superior Court in New Haven County and tried to the jury before Creorge W. Wheeler, J.; verdict and judgment for the plaintiffs for $1,000 damages, and appeal by the defendants for alleged error of the court in instructing the jury upon the amount of damages.

Appeal by the heirs at law of Betsey Bradley from a decree of the Court of Probate for the district of New Haven, ordering the residue of her personal property, amounting to $478,000, to be distributed to the residuary legatees named in her will, taken to the Superior Court in New Haven County and reserved by that court, Shumway, J., upon a demurrer to the reasons of appeal, for the consideration and advice of this court.* The material portions of the will of Betsey Bradley…

Action to recover a month’s rent, brought to the City Court of Meriden and tried to the court, Platt, J.; facts found and judgment rendered in .favor of the plaintiffs as against the defendant Barrows, and appeal by the latter for alleged errors in the rulings of the court. The finding contains the following statement of facts pertinent to the decision: “ 1.

Action to recover for merchandise claimed to have been sold and delivered to the defendant, brought 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 and charge of the court.

<p>■ Action by an attorney at law to recover for professional services, brought to the Court of Common Pleas in Fairfield County and tried to the jury before Curtis, J.; verdict and judgment for the plaintiff for $732, and appeal by the defendant for alleged errors in the rulings of the court.</p>

Appeal by the plaintiff from an order and decree of the Court of Probate for the district of Waterbury refusing to confirm its nomination as executor, taken to the Superior -Court in New Haven County and tried to the court, George . W. Wheeler, J.; facts found and judgment rendered approving and confirming the plaintiff’s nomination as executor, and appeal by the defendant for alleged error in the rulings of the court.

Action to recover possession of certain real estate and also $3,000 damages, brought to the Superior Court in Middlesex County and tried to the court, Ulmer, J., upon demurrer to the complaint; the court sustained the demurrer and thereafter judgment was rendered (Qase, •T.') for the defendants, from which the plaintiff appealed for alleged error of the court is sustaining the defendants’ demurrer. The allegations of the complaint material to this appeal are: “ 1.

Indictment for murder in the first degree, brought to the Superior Court in New Haven county and tried to the jury before Rorabaclc, •/.; verdict and judgment of guilty, and appeal by the accused for alleged errors in the rulings and charge of the court. The accused also filed a motion for a new trial upon the ground of a verdict against the evidence, and because of alleged improper comments by the State’s Attorney in his argument to the jury.

') in a receivership suit, confirming a claim of the plaintiff for 8121,000, evidenced by a judgment of the United States Circuit Court for the Southern District of California, and authorizing the receiver to bring and maintain actions in the courts of Great Britain necessary to secure and collect said claim. This is the action reported in 78 Conn. 587. The original judgment of June 22d, 1900, is sufficiently stated on page 604 of that volume.

William S. Case, a judge of the Superior Court, upon demurrers to the amended application; the judge sustained the demurrers and dismissed the application, and the applicant appealed for alleged error in the rulings of the judge.

Action by a creditor against his debtor to recover damages for concealing or withholding property from attachment so that it could not be taken by legal process, brought 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 for $308 damages, and appeal by the defendant for alleged errors in the rulings of the court. The complaint contains three counts.

Action of replevin to recover possession of a horse and carriage, brought to the Court of Common Pleas in New Haven County and tried to the court, Hubbard, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff for alleged errors in the rulings and findings of the court.

Action in the nature of ejectment, for the possession of certain real estate and for damages, brought to the Superior Court in New Haven County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court. The case is sufficiently stated in the opinion.

Action to recover the amount of a policy of life insurance, brought to the Superior Court in New Haven County and tried on demurrer to the complaint; the court, Shumway, J., sustained the demurrer and rendered judgment for the defendant, and the plaintiff appealed for alleged errors in the rulings of the court.

Action to recover the amount of two promissory notes purporting to have been made by the defendant, brought to the Superior Court in New Haven County where a demurrer to the complaint was overruled (Ralph Wheeler, J.') and the cause was afterwards tried to the court, Thayer, J.; facts found and judgment rendered for the plaintiff for part of its demand, and appeal by each party for alleged errors in the rulings of the court.

Action to recover for services rendered and expenses incurred by the plaintiff as health officer of the city of New London, brought to the Court of Common Pleas in New London county, and reserved by that court, Noyes, J., upon a finding of facts, for the consideration and advice of this court. The facts are sufficiently stated in the opinion.

Action to recover the amount of a policy of a life insurance, 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 $598, and appeal by the defendant for alleged errors in the rulings and charge .of the court, and in its refusal to grant a new trial for a verdict against evidence. The case is sufficiently stated in the opinion.

Action to recover rent under an oral lease, brought to the Court of Common Pleas in New Haven County and tried to the jury before Hubbard, J.; verdict and judgment for the plaintiffs for $73, and appeal by the defendant for alleged errors in the charge of the court to the jury. The plaintiffs by their bill of particulars claimed rent from June 22d, 1900, to March 21st, 1901, at $12 a month.

<p>Action to recover the amount of a benefit-fund certificate, brought to the Superior Court in New Haven County and tried to the jury before Mordback, J.; verdict and judgment for the plaintiff for $1,144 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>

Actios to recover damages for personal injuries claimed to have been caused by the negligence of the defendants, brought to the District Court of Waterbury and thence by the defendants’ appeal to the Superior Court in New Haven County and heard in damages to the court, Q-eorge IT. Wheeler, J.; facts found and judgment rendered for the plaintiff for $4,000, and appeal by the defendants for alleged errors in the rulings and conclusions of the court.

Action to foreclose certain real estate, brought to the Superior Court in New Haven County where an order for the sale of the mortgaged premises was passed ('Rorabaclc, J.'), and a supplemental judgment was afterwards rendered by the court, Shumway, Jawarding the proceeds of the sale, over and above the mortgage debt, to the respondent John T. Sloan, from which the respondent Humiston, trustee, appealed for alleged errors in the rulings and findings of the court.

Action to recover damages for personal injuries, brought to the Court of Common Pleas in New Haven County and, after a default, heard in damages to the court, Cable, J.; facts found and judgment rendered for the plaintiff for $500, and appeal by the defendant for alleged errors in the rulings of the court.