Volume 76 — Connecticut Reports

<p>Action to recover money claimed to be due under a contract, brought to the Superior Court in Hartford County and tried to the court, Ralph Wheeler, J.; judgment for the plaintiff for $32,860, and appeal by the defendant.</p>

), in receivership and foreclosure proceedings, establishing the order in which the claims of intervening creditors should be paid out of the proceeds of the foreclosure sale. The defendant company was organized under the laws of this State, with power to equip and operate by' electricity a street railroad between certain points in Hartford and West Hartford. On the 1st of August, 1894, said company mortgaged all its property and franchises to the plaintiff,.

Appeal by the receiver of the defendant from a judgment of the Superior Court in Hartford County (Rorabach, J.), in receivership proceedings, allowing a creditor’s claim for damages for the defendant’s breach of contract to receive merchandise ordered by it.

Action for money had and received to the plaintiff’s use; brought to the Court of Common Pleas for Fairfield County and tried to the jury before Curtis, J. When the plaintiff’s evidence was all in the defendant moved for a nonsuit, which was granted, and a motion subsequently made to set aside the nonsuit was denied.

Action to foreclose a mortgage and for other equitable relief, brought to the Superior Court in Fairfield County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the defendant Young, upon his cross-complaint, and appeal by the plaintiff.

Actiost against a fraternal societj'- to recover death-benefits, brought to the Court of Common Pleas in Fairfield County and tried to the court, Curtis, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action in the nature of an appeal from an order of the county commissioners directing the town of Meriden to repair an alleged highway, brought to the Superior Court in New Haven County and reserved by that court, Elmer, J., upon an agreed statement of facts, for the advice of this court.

Applications for relief from sewer assessments, brought to the Superior Court in New Haven County; facts found and judgments rendered confirming the assessment in each case (Case, J), and appeals for alleged errors in the rulings of the court.

<p>It is error to award damages for a threatened injury only, in the absence of any act of omission or commission.</p> <p>A threatened but groundless action of replevin will not be enjoined, if it is apparent from the allegations of the complaint that the anticipated injury, if committed, can he measured and redressed in the replevin action itself, or in an action on the replevin bond.</p> <p>A mere allegation that the loss or injury will be irreparable, if an injunction is not granted, is not enough: facts must be stated showing that such apprehension is well founded.</p> <p>The owner of freight barges, who is wrongfully deprived of their use for a time in his transportation business, can ordinarily charter or hire others to take their place, and thus fulfil his contracts. Under such circumstances his injury is not, and in the nature of things cannot be, so subtle or extraordinary as to be incapable of measurement and redress in an action at law for damages.</p>

Action to recover for extra work and labor in building the substructure of a bridge, brought to the Superior Court in New Haven County and referred to a committee by whom the facts were found and reported; the plaintiff filed remonstances to the acceptance of the amended and supplemental reports, which were overruled (Thayer, J!) and judgment was rendered for the defendant, from which the plaintiff appealed.

Information for wilfully selling veal less than four weeks old, brought by appeal of the accused to the Criminal Court of Common Pleas in New Haven County and tried to the jury before Hubbard, J.; verdict and judgment of guilty, and appeal by the accused for alleged error in the rulings and charge of the court.

Criminal prosecution against an occupant of real estate for neglect to remove snow from his sidewalk, in violation of a city ordinance, brought by appeal of the accused to the Criminal Court of Common Pleas in New Haven County and reserved by that court, Cable, J., upon a demurrer to the information, for the advice of this court.

Action upon a bond substituted for a mechanic’s lien, brought to the Superior Court in New Haven County where the plaintiff’s demurrer to the answer was overruled (Gfager, J.~) and judgment was subsequently rendered (Ralph Wheeler, J.') for the defendants, upon the admissions of the reply; from which the plaintiff appealed.

<p>A clerical mistake in recording the judgment of a court of record maybe corrected at any time upon proper notice to the parties in interest; but the rendition of a judgment for too small a sum is a judicial error, not a clerical mistake, and can be corrected, as a rule, only during the term in which the erroneous judgment was rendered.</p> <p>In the present case the trial court rendered judgment in favor of the plaintiff for $300 and costs, which was accurately although informally recorded, and at a subsequent term granted the motion of the plaintiff that the judgment be corrected by adding interest amounting to $100. Held that this was not the correction of a clerical mistake, but the substitution of one judgment for another, which the court was powerless to do after the close of the term in which the first judgment was rendered.</p> <p>The finding on appeal stated that the trial court “by oversight, inadvertence and mistake, accidentally omitted to add the interest ” in awarding the original judgment. Held that this did not show a clerical mistake in recording the judgment, but a mistake of the judge in its rendition.</p>

, upon an agreed statement of facts, for the advice of this court. The material facts agreed to and found by the trial court are in substance these : 1.

Action by the indorsee against the maker of a negotiable note, brought to the Superior Court in New Haven County and tried to the court, Thayer, J.; judgment for plaintiff, and appeal by the defendant.

Action in the nature of a scire facias against a corporation as a garnishee, brought to the Court of Common Pleas for New Haven County. Answer that the garnishee owed nothing to the original defendant, except certain moneys which it had paid into court, due to her as a beneficiary, designated by a member of the association to receive a certain pecuniary benefit upon his death; and that this fund was exempt from attachment.

<p>Action to recover damages for alienating the affections of the plaintiff’s husband, brought to the Superior Court in Fairfield County and tried to the jury before Ralph Wheeler, J.; verdict and judgment for the plaintiff, and appeal by the defendant.</p>

Action to recover. damages for breach of covenant, or in lieu thereof the amount of a mortgage note, brought to the Superior Court in New Haven County, where a demurrer to the substituted complaint was overruled (Ralph Wheeler, J.j and the case was tried to the court, Shumway, J.; facts found, judgment rendered.for the plaintiff, and appeal by the defendant.

<p>Action to foreclose mortgages of real estate, brought to and tried by the Court of Common Pleas in Litchfield County, Welch, J. ; judgment for defendants, and appeal by plaintiff.</p>

Action to determine the construction of the will of Walter Ashley, deceased, brought to the Superior Court in Wind-ham County, Shumway, J., and reserved, upon an agreed statement of facts, for the advice of this court.

Action to recover for supplies furnished paupers, brought to the Superior Court in Middlesex County where the plaintiff’s demurrer to the second defense of the answer was sustained (Ralph Wheeler, One Collins, having a settlement in the defendant town, but residing in the plaintiff town with his family consisting of his wife and three small children aged six, five and three years, respectively, on or about December 5th, 1900, deserted his family, leaving them in the…

Action to recover for services and expenses while guarding and caring for persons ill with smallpox, pursuant to direction of the town health officer, brought to the Superior Court in Tolland County where a demurrer to the complaint was overruled ('Ulmer, J.') and the cause was afterwards tried to the court, Grager, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action to recover a tax, brought to and tried by the Superior Court in Hartford County, RorabaeJc, J.; judgment for plaintiff, and appeal by defendant.

, after motions to quash the application and alternative writ, as well as a demurrer to the return and one to the reply, had been overruled (Thayer, J.') ; facts found and judgment rendered for the defendant, from which the relator appealed.

Suit to determine the construction of the will of William S. Pierson of Windsor, deceased, brought to and reserved by the Superior Court in Hartford County, Shumway, J., upon an agreed statement of facts, for the advice of this court.

Action to recover a balance claimed to be due as wages, brought by appeal from a justice of the peace to the Court of Common Pleas in Hartford County and tried to the jury before Coats, J. ; verdict and judgment for the plaintiff, and appeal by the defendant.

Action to foreclose a judgment lien, brought to the Court of Common Pleas in Hartford County and tried to the court, Coats, J.; facts found and judgment rendered for the defendants, .and appeal by the plaintiffs.

Action to recover damages for negligently running into and injuring tlie plaintiff’s milk wagon, brought to the Court of Common Pleas in Hartford County and tried to the jury before Ooats, J.; verdict and judgment for the plaintiff, and appeal by the defendant. The plaintiff was the owner of a pair of horses and wagon, used for the daily delivery of milk upon a route including Asylum Avenue in the city of Hartford, which was driven by his servant, Brewer.

<p>Suit for compensation for the use of a horse, brought originally before a justice of the peace who gave judgment for the plaintiff to recover $43 and costs. The defendant appealed to the Court of Common Pleas for Hartford County, where the cause was tried, on a general denial, to the jury, Coats, J., and a verdict rendered in favor of the plaintiff for $36.75. Judgment having been rendered for this amount, the defendant appealed to this court..</p>

Suit by an administrator with tbe will annexed, of tbe estate of Elisba 1ST. Welch, for a conversion of certain shares of stock belonging to the estate, brought to the Superioi Court in Hartford County where a demurrer to the answer was overruled ([RorabaeJe, J.') and the case tried on the merits to the court, Shumivay, J.; facts found and judgment for the defendant. The testator, who belonged in Bristol and died in 1887, left three children, two daughters and one son.

<p>Replevin for a range, brought by the defendants’ appeal from a judgment of a justice of the peace to the Court of Common Pleas for Hartford County and tried to the jury before Coats, J. ; verdict and judgment for the plaintiffs, and appeal by the defendants.</p>

Action to foreclose a mortgage of real estate, brought to the Superior Court in Hartford County where a demurrer to the complaint was overruled (Ror aback, J.') and the cause was afterwards tried to the court, Shumway, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

<p>While the buyer may “ accept and actually receive” the goods, within the meaning of the statute of frauds (General Statutes, § 1090), under a sale which is not accompanied by manual delivery or actual change of custody, yet the proof in sucli cases should be clear and unequivocal, and establish an actual change of the relation of the parties to the property. Something more is required, as proof of receipt and acceptance, than mere words indicative of the parties’ assent to the agreement of sale. There must be a delivery by the vendor and a receipt by the vendee, with the intention to vest in the vendee the possession and right of possession, discharged of all liens for the price, and an actual acceptance by the vendee of the goods, at least as the goods purchased, if not as its owner by virtue of the purchase.</p> <p>The written memorandum required by the statute of frauds need not necessarily be comprised in a single document, nor drawn up in any particular form. It is sufficient if the terms of the contract can be made out from memoranda of the party to be charged therewith, or from his correspondence; but such writings must be connected by mutual reference, and without the aid of oral testimony to supply any defects or omissions in the written evidence.</p> <p>It is competent for the jury to find that the plaintiff was the actual and bona fide owner of the chose in action on which the suit was brought, from the instrument of assignment itself and the uncontradicted testimony of the parties thereto. Nor is an instruction to that effect erroneous, merely because the jury are also told that if they believe this evidence they “should find” a valid assignment.</p> <p>It cannot be said, as matter of law, that the assignee of a chose in action is not the bona fide owner thereof, merely because the instrument of assignment requires him to return to the assignor a portion of the amount which he may recover on the claim.</p> <p>A judgment exceeding the amount demanded but within the court’s jurisdictional limit, is not void, although it may be erroneous.</p>

Wheeler, J., for the advice of this court. The Court of Probate for said district of Meriden made the following order: — Estate of Owen B. Arnold, late of Meriden, in said district, deceased. . ' “ It appearing to the court from the inventory of the above estate that the total property of said estate at the time of said inventory was as follows, to wit: Real estate, ...... $8,900.00 Personal property, .... 242,738.87 ' Total, . . ’ . . . . $251,638.87 “ And it further…

Action for the appointment of a receiver to wind up the affairs of a national banking association, and to collect certain assets which, as alleged, its managers had wrongfully charged off or disposed of; brought to the Superior Court for New London County.

<p>A testator gave two thirds of all the personal property, and one third of all the real estate, which he might own at his death, to his wife in fee; to a sister he gave $2,000; to his mother (who died before him) the use or income of $0,000 during her lifetime, and the principal thereof at her decease, to his brothers and sisters, equally, in fee; and the residue of his estate he gave to his brothers and sisters in equal parts, the issue of those dying before the testator to take their parent’s share. By a codicil he gave to his wife certain real estate, specifically; to a nephew ((?) and a niece (J), children of liis sister JS, small pecuniary legacies, declaring that these amounts were all they were to receive from his estate; and to certain charities $20,000. The final clause of the codicil provided that his will should remain as it was “ except the provision I have made in this will which shall stand first, after all this will has been executed.” In a suit to construe the will and codicil it was held: —</p> <p>1. That the death of the testator’s mother before him did not invali-</p> <p>date the gift over of the $6,000 to his brothers and sisters; especially as the codicil, which was executed after her death, made no change in such gift.</p> <p>2. That while it was possible the testator might have intended by the</p> <p>obscure, final clause of- his codicil, to create a preference or priority in the payment of the legacies given in the codicil, he certainly did not intend to reduce the actual quantum or amount of his personal property upon which his wife’s two thirds was to be calculated, by the amount ($20,200) of the pecuniary legacies given in the codicil.</p> <p>3. That the widow was entitled, not to two thirds of the gross amount</p> <p>of personal estate left by the testator, but to two thirds of the net amount of such estate; that is, the amount left after the payment of debts and the expenses of settlement.</p> <p>4. That if this net personal estate should prove insufficient to pay the</p> <p>general and pecuniary legacies, real estate not specifically devised might be sold and the proceeds used to supply the deficiency.</p> <p>5. That the widow was entitled to take the specific devise in the codi-</p> <p>cil, and, in addition thereto, one third of all the real estate, including in such total said specific devise but excluding that portion of the realty which might be required for the satisfaction of legacies.</p> <p>6. That & and J were not entitled to take in right of their mother (U),</p> <p>who had predeceased the testator, since the codicil clearly cut them oS from any participation in the estate beyond their two small legacies; and that their brother succeeded to his mother’s share.</p>

Action upon the common counts, brought to the Superior Court in New Haven County where the plaintiff’s bill of particulars was stricken from the files (Gager, J.'), a proposed amendment of the complaint was disallowed (George W Wheeler, J.), and judgment of nonsuit was rendered, from which plaintiff appealed.

Action to recover special damage for injury to the land of the plaintiff adjoining a highway, resulting from a change of grade, brought to the Superior Court in New Haven County and tried to the jury before Holinson, J.; verdict and judgment for the plaintiff, and appeal by the defendant.

<p>Section 566 of the General Statutes provides that “process in civil actions,” including transfers, applications for relief, and removals, shall be made returnable to the next return day, or to the next but one ; while under §567, “appeals from justices of the peace and from other inferior tribunals” must be taken to the return day of the appellate court next after their allowance. Held that the Revision of 1902 had worked no change in the previously existing law, under which an appeal from probate was included in the term “ process in civil actions,” and that such an appeal was therefore seasonably taken if made returnable to the next return day but one.</p>

Writ of error to reverse certain portions of a judgment of the District Court of Waterbury, Oowell, J., adverse to the plaintiffs in error, after a verdict of the jury in their favor.

Action of replevin, brought to the Court of Common Pleas in New Haven County where, after a pendency of three years without trial, it was stricken from the docket by the court, Cable, J. Subsequently, upon an ex parte motion, the cause was restored to the docket {Cable, J.'), and later was again stricken therefrom {Hubbard, <7!) after a hearing upon motion, from which action the plaintiff appealed.

Suit for ail injunction to protect the plaintiff’s enjoyment of certain rights in and to a strip of beach near his summer residence at the seaside ; brought to the Superior Court for New Haven County and tried to the court, George, W. Wheeler, J.; judgment for plaintiff, and appeal by defendants.

Action for an accounting and for the recovery of the sum found due thereon, 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, upon the ground that the judgment was rendered after the time allowed therefor by statute had expired.

Action to recover money entrusted to the defendant to purchase certain real estate for the plaintiffs, and wrongfully converted by the defendant to his own use, 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, and appeal by the defendant.

Action commenced in March, 1903, for $3,000 damages, for acts done in the course of the construction of improvements upon the defendant’s road to the injury of an abutter on a street adjoining the railroad; brought to the Superior Court for Fairfield County where a demurrer to the answer was sustained (Case, J.) and judgment rendered for plaintiff for $500.

<p>A complaint alleging merely that the plaintiff, while lawfully riding on the defendant’s freight elevator in the act of delivering ice to its club room on the second floor, was injured by a fall of the elevator due to the breaking of its cables, does not describe the relation of a passenger to a common carrier of passengers, nor does it disclose a situation which calls for the exercise of more than ordinary care upon the part of the defendant.</p> <p>Upon a hearing in damages after a default, the burden assumed by the defendant does not extend beyond the disproof of such facts as are alleged with reasonable certainty in the complaint. .Accordingly, if charged with “ knowledge ” of the defects which caused the plaintiff’s injury, it is sufficient for the defendant to prove that he in fact had no knowledge of them; he is not obliged to go further and disprove the nonexistence of circumstances from which knowledge might be imputed to him as a conclusion of law.</p> <p>In the absence of a default, it is questionable whether such a variance between the plaintiff’sallegation and proof might not, in the discretion of the trial court, be disregarded as immaterial.</p>

<p>While an independent suit to restrain a party from enforcing a judgment of the Superior Court can be broughtto that court only (General Statutes, § 53*7), it is not essential that it should be brought in the same county as that in which the first action was tried and determined.</p> <p>A court of equity may reform a written instrument which, by reason of a mutual mistake of the parties either in a matter of fact or of law, fails to express their true intent and meaning.</p> <p>Where one of the parties seeks to give the instrument a different meaning from that which both parties accorded to it when it was drawn, and to hold the other liable on it as thus construed, the latter should ordinarily protect himself by filing a cross-complaint for a reformation of the instrument; otherwise he may be precluded from availing himself of that remedy by the rule or doctrine of res judicata—which includes not only such dgfenses as were actually interposed, but such also as might and ought to have been made.</p> <p>That rule, however, which rests upon and grew out of considerations of public policy in the administration of justice, has important and recognized qualifications, and its application will not be permitted where it will work a manifest wrong or injury to a litigant who has acted in good faith and with reasonable diligence in the protection of his own interests.</p> <p>In the present case A, the plaintiff, when sued by H, the defendant, on the written agreement, did not ask for its reformation, because he knew the construction urged by H was not in accord with their real agreement, and also because he was advised by competent counsel, and in good faith believed, that H?s contention could not be upheld. As soon, however, as this court had decided otherwise, A asked leave of the trial court to file a counterclaim for a reformation of the writing, which was denied on the ground that it came too late. He then brought the present independent action, for a reformation of the contract, and for an injunction restraining U from taking out execution on his judgment. The trial court having found that the contract as drawn did not express the toue agreement of the parties, reformed it accordingly and granted the injunction. Held:—</p> <p>1. That the situation was one which justly appealed to the judicial</p> <p>conscience, and fully warranted the court in relaxing the rule of policy above stated.</p> <p>2. That the refusal to permit A to file a cross-complaint in the former</p> <p>action was simply an exercise of the trial court’s discretionary control over pleadings, and was not an adjudication of the plaintiff’s right to a reformation.</p> <p>3. That the fact that A relied upon the construction of the instrument</p> <p>which had been common to both parties and accorded with their real agreement and intent, as a sufficient ground of defense in the first action, was not to be imputed to him as laches nor to have the effect of an estoppel, under the circumstances disclosed by the record; especially as H—who must be presumed to have known the real agreement, and therefore the falsity of the instrument by means of which he was seeking to render A liable—was in no position to invoke the doctrine of laches or estoppel.</p> <p>4. That the doctrine of election had no application to A’s situation.</p> <p>Absence of direct contradiction by the mouth of a witness does not make a so-called fact “ undisputed,” within the meaning of the Rules of Court, p. 93, §10.</p> <p>It is one of the important functions of a trial court to determine the relative credit to be given to oral evidence ; and this is a province which this court cannot invade.</p> <p>On his direct examination a witness testified that at a given date the defendant was,of sound mind. Held that he could not fortify or reinforce that opinion, on his direct examination, by showing that within a few days after such date he had, with the advice of his ' counsel, given the defendant a power of attorney involving the care and disposition of his entire property.</p> <p>It is not important the record should he corrected in order to show that an elementary claim of law was urged upon the trial court, unless it affirmatively appears that the court did not accept the proposition as correct in arriving at its conclusion.</p> <p>Until the cost of such printing has been paid to him, the clerk is justified in refusing to print evidence, the only place or purpose of which in the record is incident to an effort to secure a review and correction of the finding. The cost of such printing is by no circumvention to be cast upon the State.</p>

<p>Information for a felonious assault witli' intent to procure an abortion, brought to the Superior Court in New London County and tried to the jury before RorabacJc, J.; verdict and judgment of guilty, and appeal by the accused.</p> <p>The information of the State’s Attorney charged one Marion W. Beebe and the defendant, Michael Carey, jointly, with an assault on the body of Ida May Lafferty, and with their hands thrusting an instrument into her womb' and body, she being pregnant with child, with the intent thereby to procure upon her a miscarriage and abortion, the same not being necessary to save her life or that of her unborn child.</p> <p>The information contained three counts, charging three offenses; the first as committed on July 16th, 1902, the second on August 1st, and the third on August 20th, of the same year.</p> <p>At the request of Carey he was accorded a separate trial. The State claimed to have proved that Carey and said Lafferty were, at the times of the offenses charged, and for some time prior thereto had been, on intimate terms, involving sexual intercourse; that upon Ida’s discovering signs of pregnancy, Carey hired s#,id Beebe to operate for abortion, and on July 16th conducted her to a room provided for the purpose, where Beebe performed the operation, Carey watching outside the locked door; that upon discovering further signs of pregnancy, a second operation was performed on August 1st, and a third on August 20th.</p> <p>The defendant claimed that the State had proved that operations were performed upon Ida, by Beebe, upon the dates mentioned; but claimed that the testimony was insufficient to prove the defendant’s connection with the crime.</p> <p>Beebe and Lafferty were examined as witnesses for the State. The defendant did not testify. It does not appear what, if any, other testimony was produced in support or contradiction of the defendant’s connection with the crime.</p> <p>The defendant was found gnilty and sentenced upon each count.</p> <p>A finding of facts was made by the court (Roraback, J.'), and the defendant’s appeal assigns error in the charge and in the rulings upon evidence.</p>

Action to recover damages for personal injury alleged to have been caused by the negligence of the defendant, brought to the Superior Court in New Haven County and tried to the jury before Robinson, J.; verdict and judgment for the defendant, and appeal by the plaintiff. In this court the appellee filed a plea in abatement, on the ground that the appeal failed to state the time of the sitting of the court to which it was taken, to which the appellant demurred.

Appeal by certain creditors from an order and decree of the Superior Court for New Haven County (Gtager, J.~) in receivership and insolvency proceedings, disallowing in part their respective claims against the defendant.

, upon demurrer to the reasons of appeal; the court sustained the demurrer and dismissed the cause, and the appellant appealed.

Action to foreclose a meclianic’s lien, brought to tbe Superior Court in New Haven County where a demurrer to the plaintiff’s replication was overruled (Case, J.~) and the cause was afterwards tried to the court, Gager, J.; facts found and judgment rendered for the plaintiff, from which some of the defendants appealed. Two other cases between the same parties and alike in all material respects were consolidated and tried with this case.

Action to foreclose a mortgage for $5,000, brought to tbe City Court of New Haven and thence by appeal to tbe Superior Court in New Haven County and tried to the court, Gager, J.; facts found and judgment rendered establishing the validity of the mortgage for the full amount, as against the mortgagor Arick, but for $1,323 only, as against the other defendants, and appeal by the plaintiffs and certain of the defendants.

), confirming the action of the' county commissioners of that county in granting a liquor license to one Michael O’Connell.

Action to recover damages for breach of contract, brought to the Superior Court in Fairfield County and tried to the jury before Ralph Wheeler, J.; verdict and judgment for the plaintiffs for $1,005 damages, and appeal by the defendant.

; facts found and judgment rendered granting the application and reversing the action of the Court of Probate, and appeal by the respondent.

admit to probate a certain instrument as the last will and testament of Henry Kennedy, deceased, taken to the Superior Court in Hartford County and tried to the court, Shumway, J., upon demurrer of defendants to the plaintiff’s answer to a plea in abatement and to the jurisdiction; the court sustained the demurrer and dismissed the cause, and the plaintiff appealed.

<p>No appeal lies from the refusal of a Court of Probate to allow an appeal ; but such refusal may be reviewed upon mandamus proceedings against the judge of probate.</p> <p>When a general guardian has-been appointed by a Court of Probate, he is usually the proper person to represent the infant plaintiff in a civil action; but cases are not infrequent in which the infant may properly sue by next friend, notwithstanding the existence of such guardian.</p> <p>The mere fact that the property of a minor is under the care of a guardian duly appointed by the Probate Court, and that he declines to appeal from a probate decree affecting property of which the minor is the sole heir, does not justify the Court of Probate in refusing to allow an appeal of the minor when duly taken by his next friend.</p> <p>Whether the circumstances of the case are such as to permit the minor to prosecute the appeal by his next friend instead of by such guardian, and whether the next friend is a suitable person to represent the minor in the prosecution of such appeal, are questions for the sole consideration of the Superior Court to which the appeal process is returnable.</p> <p>The facts in the present case reviewed and held to furnish a sufficient basis for action by the Superior Court which would sustain the probate appeal sought to be taken by the minor’s next friend.</p> <p>Under our practice it is not necessary that a prochein ami should receive authority from any court to enable him to commence an action in behalf of an infant.</p> <p>A husband who has by antenuptial agreement renounced all claim to and interest in his wife’s property, cannot be “ aggrieved” (§ 406)' by decrees of the Probate Court in relation to the settlement of her intestate estate; and therefore cannot appeal from such decrees.</p> <p>The sole heir of an estate of a deceased person has the right, under § 406, to appeal from a probate decree authorizing the administrator to accept a certain sum in compromise of claims owned by the estate.</p> <p>A parent is not entitled, as the natural guardian of his minor child, to the possession or control of the minor’s property, either at common law or by statute (General Statutes, §§ 216 to 220).</p> <p>The statute allowing a minor to appeal from a probate decree in his own name within twelve months after he arrives at full age (§408), does not prevent him from taking an appeal by next friend or guardian during his minority.</p> <p>Under General Statutes, § 224, the guardian of property in this State owned by a nonresident minor has an authority, only, uncoupled with any legal title or interest in the property.</p>

Ralph Wheeler, a judge of the Superior Court, upon demurrer to the application. The judge sustained the demurrer and dismissed the application, and the plaintiff appealed.

Suit to determine the construction of the will of Orlando Lewis of Roxbury, deceased, brought to and reserved by the Superior Court in Litchfield County, Elmer, J., upon a finding of facts, for the advice of this court. The testator died in 1890, possessed of both real and personal estate not ancestral. His will, duly probated, after providing for the payment of his debts, funeral expenses, and certain legacies, contained the following pertinent provisions:— ‘ ‘ Fourth.

Plea in abatement to an appeal from a judgment of tbe Superior Court in Hartford County (Shumway, J.~), confirming tbe action of tbe board of relief. Tbe appellant filed an answer to wbicb tbe appellee demurred.

<p>Suit to determine the construction of the will of Stephen A. Watson of Harwinton, deceased, brought to and reserved by the Superior Court in Litchfield County, Elmer, J., upon a finding of facts, for the advice of this court.</p> <p>The testator, a farmer in Harwinton in this State, died in November, 1902, leaving the will here in question, executed in September, 1902. The entire will was written by himself, and is as follows : —</p> <p>“In the name of God amen: I, Stephen A. Watson of the town of Harwinton, county of Litchfield, State of Connecticut, being of sound mind and memory and considering the uncertainty of life therefore do make and declare this my last will and testament that is to say, first after all my debts are paid I give and bequeath to my cousins Charlotte Butler, wife of Dan C. Merrill, and Frank R. Mason, son of John C. Mason, five hundred dollars each, to the Litchfield County Hospital situated in the town of Winchester, my farm, livestock, tools and household furniture to do with as the directors of said hospital think best and all my moneys, bonds notes and money in savings banks to be held by the directors of the said hospital to be known as the S. A. Watson fund, the interest and income to be used for the benefit of said hospital.”</p> <p>The summary of the inventory and appraisal of the testator’s estate, as it appears in the record, is as follows:</p> <p>Sundry articles, personal property, tools, hay, provisions, clothing, etc., . . . $ 590.29</p> <p>Live stock,....... 277.00</p> <p>REAL ESTATE.</p> <p>Homestead, 60-acre tract, . $ 1,300.00</p> <p>Orchard and meadow, 12-acre tract, 300.00</p> <p>North piece, 31-acre tract, . . 300.00</p> <p>Wood lot, 35-acre tract, . . . 300.00 2,200.00</p> <p>SECURITIES.</p> <p>Certificate of 5 shares preferred stock, of $100 each, of Boston & New York Air Line R. R. Co., No. A596, issued May 12,1879 (mentioned in the complaint), Scrip of above company, .... $ 550.00 1.00</p> <p>Certificate'of 18 shares stock, of $100 each, of Hartford & Connecticut Western R. R. Co., issued October 8, 1881 (mentioned in the complaint),..... 810.00</p> <p>23 separate real estate mortgage coupon bonds, aggregating the sum of . 8,190.00</p> <p>Amount brought forward, $12,618.29</p> <p>4 debenture and trust bonds, 900.00</p> <p>18 separate mortgages and mortgage notes, . 9,680.00</p> <p>3 promissory notes,..... 151.00</p> <p>4 separate savings bank deposits, amounting to 10,960.31</p> <p>Total inventory and appraisal $34,309.60</p> <p>The testator was never married, and his nearest of kin and only heir at law is his maternal uncle, John C. Mason of Mansfield in Tolland county, a man now over eighty years old.</p> <p>Included in the inventory of the testator’s estate were numerous articles of wearing apparel, appraised in the whole at the sum of $43.80, and certain articles of silverware, appraised at the sum of $8, making in all $51.80. All of these things are specifically enumerated and described in Exhibit A annexed to the complaint.</p>

<p>Any judgment which has been either fraudulently obtained or so improvidently entered that it is against equity and good conscience to make claim under it may be set aside at a subsequent term, upon the application of any person aggrieved and due notice to all the parties to the record. This remedy is not confined to the parties to the suit, but is open to any one whose legal or equitable rights were directly invaded by the judgment.</p> <p>Creditors of a corporation who had no knowledge of the pendency of proceedings for its dissolution, and were intentionally prevented from receiving notice thereof by those who were conducting the winding-up suit, are aggrieved by a judgment dissolving such corporation while it has outstanding liabilities and owns property or rights of action which are applicable to their payment.</p> <p>In the present case the winding-up suit was ordered by the directors and prosecuted by the president of the corporation, who intentionally concealed from the court and the receiver the fact that the plaintiff had a large claim against it, in consequence of which the receiver failed to send any notice to the plaintiff of the limitation of time for presenting claims, and the corporation was wound up and dissolved before the plaintiff learned of what had been done. Held that although the president’s concealment was not found to have been fraudulent, yet it was clearly inequitable and against good conscience, and afforded a sufficient reason for opening the judgment of dissolution upon the application of the plaintiff.</p> <p>On such an application it is unnecessary for the creditor or claimant to do more than prove that he has a bona fide demand, which is a proper subject for judicial investigation and determination in appropriate proceedings; and therefore a finding that a valid claim was established and exists goes beyond the issue and will not prevent the receiver from disallowing the claim, if thereafter presented to him, should he, upon full investigation, deem it unfounded.</p> <p>Notwithstanding the dissolution of a corporation by judicial decree, those really interested in it—its members or its creditors—can always rely upon obtaining adequate protection from the courts. So long as the control of the court over the winding-up proceedings continues according to the ordinary course of judicial procedure, so long it may open and set aside the judgment of dissolution for sufficient cause duly shown, and at the same time revive the corporation for the purpose of enabling it to be wound up properly.</p> <p>One corporation which has transferred all its assets to another, upon the agreement of the second to pay the debts of the first, can proceed in equity to compel the performance of the agreement; and that right constitutes an asset which its creditors can pursue in equity. If it has been improperly dissolved, the reopening of the judgment of dissolution, so that the company or its receiver may enforce the agreement for the benefit of its creditors, is an appropriate remedy.</p> <p>While a surety cannot sue the principal debtor, at law, until he has been damnified, if he has, as part of the contract of suretyship, put all his property in the principal’s hands, he may have relief in equity, should the latter, while retaining the property, avoid payment of the debt in violation of the rights of the creditor.</p> <p>In determining the sufficiency of a complaint to support a judgment, interlocutory rulings under which it may have been remoulded are immaterial.</p> <p>Judges, as well as juries, when trying issues of fact, can find facts by inference from other facts.</p> <p>A plaintiff cannot be said to have been guilty of laches, merely because he made a natural and excusable mistake in originally suing the wrong party.</p>

Action of interpleader, brought to the Superior Court in Hartford County and tried to the court, Shumway, J.; facts found and judgment rendered awarding the fund to the Connecticut River Banking Company, from which other claimants appealed.

<p>Action to set aside certain deeds of real estate, to foreclose a mortgage, and for other equitable relief, brought to the Superior Court in Fairfield County and referred to a committee who found and reported the facts, upon which judgment was rendered (Case, J.j for the plaintiff, from</p> <p>which two of the defendants appealed.</p> <p>The action was originally brought in the name of the conservator of Jane E. Jennings and Helmina J. Jennings, the defendants being Francis M. Jennings and William T. and Thomas I. Raymond. The case was referred to a committee to find the facts. After the committee reported, Helmina died and a month thereafter Jane also died. An administrator having been appointed upon Helmina’s estate, he suggested upon the record the deaths aforesaid and entered as the administrator of Helmina to prosecute. The committee’s report was then accepted and judgment rendered.</p> <p>The facts found are in substance as follows: In 1880 Joshua Jennings died intestate, leaving, among other estate, his homestead of seven acres and another tract of land of fifteen acres. He left a'widow, Jane E. Jennings aforesaid, and four children, of whom Helmina and Francis M. Jennings aforesaid were two. The widow and said Francis and Helmina thereafter continued to live together in said homestead until after the commencement of ihis action, when the said Jane and Helmina died. As the result of conveyances between the surviving family of Joshua, it transpired that in 1899 Francis owned (1) the homestead, subject to an interest in his mother, and also subject to a mortgage for the principal sum of $3,000 to the South Nor-walk Savings Bank, which mortgage covered both the interest of Francis and his mother; and (2) the fifteen-acre tract, subject to a mortgage to Helmina for the principal sum of $2,000. There was also a second mortgage, made in 1896, covering both premises, to the defendants Raymond, for $1,000, of which sum $600 was a pre-existing debt, the balance of the mortgage being made to secure interest and future book accounts.</p> <p>In the autumn of 1899 the Savings Bank instituted a foreclosure of its said $3,000 mortgage, because of a default in payment of interest; Francis M. Jennings was financially embarrassed, and unable to extricate himself or to redeem said mortgage. He called upon the Raymonds and requested their assistance. They offered to assume the Savings Bank mortgage and the interest due thereon, together with unpaid taxes and the expenses of foreclosure, and to cancel the indebtedness due to them, provided said Jennings would give them a deed of both tracts, conveying the whole title, cleared of the interest of his mother and sister; and with the further agreement on the part of the Raymonds that they would give Jennings a lease of said premises for ten years at a yearly rental of $325, with an option to repurchase at any time within ten years, on payment to them of the original cost. This proposition was accepted, after consideration, and on January 16th, 1900, in furtherance of said agreement, the following papers were executed, to wit: (1) A quitclaim deed from Francis M. Jennings and Jane E. Jennings to the defendants, covering their interest in the seven-acre tract; (2) a quitclaim deed from Helmina J. Jennings to Francis M. Jennings, releasing her mortgage on the fifteen-acre tract; (3) a quitclaim deed from Francis M. Jennings to the Raymonds, covering his interest in the fifteen-acre tract, which deed was subsequent to the last-mentioned deed; (4) a lease from the Raymonds to F. M. Jennings and his son, of both tracts for ten years, with an option to purchase during the continuance of the lease.</p> <p>These deeds were executed under the following circumstances : The defendant Thomas I. Raymond acted for himself and William T. Raymond. After said Raymond made the offer hereinbefore detailed, and before January 16th, 1900, Francis M. Jennings told his mother, Jane E. Jennings, that he was in trouble, that the bank would take the property unless he could raise money, and informed her of the proposition of Raymond. He made these statements in the presence of Helmina. It does not appear what reply, if any, was made by either. Raymond never had any personal communication with the ladies regarding the matter. After Jennings had agreed to the proposition, Raymond directed his attorney to prepare the necessary papers, and sent Ms bookkeeper with the attorney to the Jennings house, where the attorney, the bookkeeper and the three Jennings all being present, the deeds were read and executed. Neither the attorney nor the bookkeeper observed that either lady was not competent to tmderstand the deeds.</p> <p>Neither of the Raymonds knew anything about the mental condition of Jane E. Jennings. Thomas I. Raymond had met Helmina J. Jennings some years before and knew that she was not a person of average mental ability, but he did not know whether or not she had sufficient capacity to understand or execute a deed. The Raymonds considered that they were dealing with Francis M. Jennings alone; and he was not acting as their agent, but solely for his own benefit, in obtaining the signatures of Ms mother and sister. Jane E. Jennings was eighty-four years old when she signed the deed, but her mind was not impaired to such an extent that she did not understand what she was doing, and she understood that she was conveying her interest in the land to the Raymonds, in order that her son and herself might thereby be saved from losing their home. Helmina Jennings was of inferior intellect; she could read and write to some extent, and she attended church and Sunday-school, but she was incapable of transacting any business intelligently, and could not be trusted to go to church or to the village alone, or to dress herself without advice. She did not understand the meaning of the deed read to her, and had not mental capacity to do so, and this fact was well known to Francis M. Jennings when he procured her signature. She received no consideration for her signature, except that by means of it her brother was enabled to obtain the lease from the Raymonds, which, if its terms were complied with, would presumably enable her to remain with him in the homestead instead of being ejected therefrom. She was incapable of understanding this advantage.</p> <p>The plaintiff still holds the $2,000 mortgage. All allegations of fraud or conspiracy on the part of the Raymonds are found untrue.</p> <p>The court rendered judgment cancelling and setting aside the deed from Helmina to her brother and that from him to the Raymonds, embracing the fifteen-acre tract, and foreclosing the brother and the Raymonds under the $2,000 mortgage.</p>

Action to recover on a policy of life insurance, brought to the Court of Common Pleas in Fairfield County and tried to the jury before Light, Acting-Judge ; verdict for the plaintiffs, which the court upon motion set aside as against the evidence, from which the plaintiffs appealed.

Action to foreclose a mortgage of real estate given as security for a balance due for purchases of stock, brought to and tried by the Superior Court in Fairfield County, Case, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendant.

Action, to recover a portion of an annuity given to the annuitant during her lifetime, brought to and tried by the Superior Court in Fairfield County, Thayer, J., upon demurrer to the complaint; demurrer sustained and judgment for defendant, from which plaintiff appealed.

<p>Action to foreclose a mortgage of real estate, brought to and tried by the Superior Court in New Haven County, Shwmway, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants.</p>

Action to recover damages for the conversion of a stock of goods, brought to the Superior Court in New Haven County where a demurrer to the second defense of the answer was overruled (Elmer, J.'), and one to the reply to such defense sustained (Giager, J.), and the case was then tried to the court, Q-eorge W. Wheeler, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff.

<p>Having made absolute gifts to his six children, a testator, in the seventh clause of his will, created a trust estate, consisting of real property, the net income of which was to be paid over to his i children annually or oftener, in certain specified proportions, “to | be held by said children and their heirs forever.” After a certain son and his wife had deceased and their youngest surviving child had reached twenty-one, the beneficiaries receiving five eighths of the income were authorized to terminate the trust, if they chose, | whereupon the trustee was to convey the principal of the trust es- . tate to those entitled to the income, and in the same proportions. | If not so terminated, the trust was to cease thirty years after the ‘ testator’s death, when the corpus of the property was to be conveyed to the several beneficiaries in the aforesaid proportions. / The testator died in 1892 and his six children still survive. Two Í of the sons were adjudicated bankrupts in March, 1902, and in February, 1903, the trustee in bankruptcy, pursuant to an order of court, sold their interests in the trust estate. In a suit to construe the will it was held:—</p> <p>1. That in view of the general plan and purpose of the whole will, it was evidently the intention of the testator that the heirs of such child as might die during the term fixed for the continuance of the trust, should—subject to certain specified exceptions—take such decedent’s share of the income.</p> <p>2. That tested by the statute or common-law rule against perpetuities, the trust to pay income could not be saved in its entirety, since the gift to the heirs of the child dying within thirty years from the testator’s death, might not vest within the period prescribed by ! law; but that until such death occurred the trust could be main- ® tained and the testator’s intent carried into effect.</p> <p>3. That upon the testator’s death each of his six children took an equitable, vested remainder, or cross-remainder, in fee, in a specific, undivided portion of the corpus of the trust property.</p> <p>4. That the interest of the two bankrupt sons in the income (£), as well as in the corpus of the trust property, passed to their trustee in bankruptcy at the date they were adjudicated bankrupts; while the vendee of the trustee in bankruptcy was entitled to the income accruing since his purchase, with the right to a conveyance of the legal title in fee to two undivided eighths of the trust property upon the termination of the trust to pay income.</p> <p>There is no rule which limits the continuance of a trust to any period of time; but the beneficial interest must vest in the cestui que trust within the time limited by law for the vesting of legal estates.</p>

<p>Action upon the common counts to recover for money-loaned, brought to the Superior Court in New Haven County and withdrawn by the plaintiff after the defendant had filed defenses by way of set-off; the defendant moved to restore the case to the docket, to which the plaintiff demurred, and the court, Shumway, J., reserved the case for the advice of this court.</p> <p>The defendant, having been sued on the common counts, filed his answer containing a general denial and two separately numbered defenses entitled, “ By Way of Set-off.” The plaintiff replied and issues were joined by the defendant’s rejoinder. A committee was appointed to hear the case. While the cause was so pending the plaintiff died. His executrix not having entered within six months, the defendant, pursuant to § 1131 of the General Statutes, had a writ of scire facias issue against her to show cause why judgment upon the set-offs should not be rendered against her. The parties thereupon stipulated that the action revive, that the executrix enter, and that it be proceeded with before the committee, “ such procedure of such committee to be continued and completed in the same manner and to the same effect as if said Isaac J. Boothe had not died.” A few months later the plaintiff filed a withdrawal of the action. The defendant thereupon filed a written motion for the restoration of the case to the docket. To this motion the plaintiff demurred. The defendant claims (1) that by force of the stipulation the case was not subject to withdrawal, and should therefore be restored as asked; and (2) that in any event he is entitled to have the case, in so far as his causes of action entitled “By Way of Set-off” are concerned, restored to or remain on the docket, so that he may pursue them to judgment.</p>

Action to recover money claimed to have been obtained by undue influence and fraud, brought to and tried by the Court of Common Pleas in New Haven County, Galle, J., and judgment rendered for the defendants. After notice of appeal had been filed by the plaintiff, the trial judge died before making a finding of facts.

Action to determine the title to certain real estate, brought to the Superior Court in New Haven County where the defendants filed a plea in abatement alleging the pendency of another suit between the same parties for the same cause of action; the court (Shumwag, J.') sustained the plea and dismissed the action, and the plaintiffs appealed.

Ineokmation for perjury, brought to the Criminal Court of Common Pleas in New Haven County and tried to the jury before Bishop, J., after a motion of the accused, to erase the case from the docket for want of jurisdiction, had been denied; verdict and judgment of guilty, and appeal by the accused.

Suit for an injunction to restrain the defendants from stopping and leaving cars on a spur track in front of the plaintiffs’ platform, except for the purpose of loading or unloading their merchandise, and for $5,000 damages, brought to the District Court of Waterbury and referred to a committee who found and reported the facts ; the court, Cow-ell, J., accepted the report and rendered judgment awarding the plaintiffs an injunction and $1 damages.

<p>Section 324 of the General Statutes provides that an administrator who does not return an inventory of the estate to the Court of Probate within two months after the acceptance of his bond, shall forfeit, to him who shall sue therefor, $20 for each month’s delay, “ unless before suit be brought he make an excuse for such delay acceptable to the court.” Held: —</p> <p>1. That the clause quoted implied that the subject-matter of the excuse</p> <p>should be presented in some way to the Court of Probate, and not merely to the judge; that the court should exercise its judicial functions in hearing and passing upon the acceptance or rejection of the excuse, and that its decision should be duly recorded, as a judicial act, upon its records.</p> <p>2. That the existence of such an acceptance could be proved ordinarily</p> <p>only by the record.</p> <p>3. That an excuse orally made to, and informally accepted by, the</p> <p>probate judge, without hearing or notice, and with no intention of making any record thereof as a judicial act, was not such an acceptance as the statute, required, and would not be available as a defense, if proved.</p> <p>Each month’s delay in returning the inventory, after the time limited therefor, constitutes a complete offense, all of which may, however, be included in one count in the complaint.</p> <p>The statute of limitations (§ 1120) bars a recovery of the forfeiture for every month’s delay which occurred more than one year before the commencement of the action.</p>

Action by tbe trustees under the will of Bronson B. Beardsley of Bridgeport, deceased, for a construction of the will; brought to the Superior Court for Fairfield County and reserved QJSlmer, J.') for the advice of this court. The material parts of the will were as follows : — “ Third.

Application to a judge of the Superior Court, under Public Acts of 1893, Ch. 231, § 13 (General Statutes, § 1993), to compel the defendant to purchase the plaintiff’s plant. A spedial commission of three was appointed to make the adjudication called for by the statute. The defendant filed two ‘motions before the commission to dismiss the cause, which were denied.

<p>The weight and credibility of evidence is a matter for the determination of the trier, and therefore the testimony of a witness or witnesses, although not directly contradicted, may nevertheless be discredited by circumstances in evidence.</p> <p>Certain claims of error in the present case reviewed and held to rest upon mistaken assumptions respecting the finding of the trial court.</p> <p>The possession of a life tenant is not adverse to the remainderman or reversioner.</p> <p>The assignee of the reversion in an estate granted to a life tenant upon express condition, cannot avail himself of breaches of the condition which occurred prior to his acquisition of title.</p> <p>Until a life tenant’s right of possession matures he cannot be chargeable with laches in not asserting it.</p> <p>To estop a plaintiff in ejectment upon the ground of his silence while the defendants were making improvements upon the property and selling portions of it as their own, it must at least appear that he either knew or was bound to know of them.</p> <p>Section 4052 of the General Statutes provides that final judgment in ejectment shall not be rendered against a defendant who has in good faith made improvements upon the property, believing his title to be absolute, until the court shall have ascertained the present value of such improvements and the amount due the plaintiff for use and occupation ; and if the value of the improvements exceeds the amount due for use and occupation, execution shall not issue until the excess has been paid by the plaintiff to the defendant, or into court for his benefit; but if the plaintiff shall elect to have the title confirmed in the defendant, and shall file notice thereof, the court shall ascertain what sum ought in equity to be paid to tlie plaintiff, and upon its payment may confirm the title in the defendant. Held :—</p> <p>1. That the statute gave the court no authority to force an unwilling</p> <p>defendant to purchase the plaintiff’s title, and therefore the trial court erred in rendering a judgment against the defendants for-the ascertained value of such title. It is questionable whether the legislature could constitutionally enact a statute conferring such power.</p> <p>2. That whether the provisions of the statute are applicable to any</p> <p>case in which the plaintiff is not the owner of the fee, they cer- . tainly do not apply, and could not have been intended to apply, to a case in which the plaintiff’s interest is only a life estate defeasible upon conditions subsequent, which may or may not occur at any time, and which limit the plaintiff’s beneficial enjoyment in the premises and diminish the value to him, of the defendants’ improvements, the extent of such diminution being in any event substantia], and susceptible of being still further restricted by judicial construction of the language imposing the conditions.</p> <p>3. That the conditions of forfeiture imposed upon the life tenant, pro-</p> <p>vided he alienated the premises or failed to live upon them during his life, were not against public policy.</p> <p>4. That the plaintiff was entitled to recover as damages the fair rental</p> <p>value of the unimproved property during the time he was unlawfully dispossessed, subject to any proper deductions ; but that such rental value was not to be reduced by reason of the limitations imposed upon the plaintiff in the use of the premises.</p> <p>A waiver of the right to take advantage of existing breaches of conditions is not a waiver of the conditions themselves.</p>

<p>Tlie parties were at issue respecting the right of the State to authorize the erection of a soldiers’ memorial upon a strip of land in the city of Hartford lying south of the driveway in front of the Capitol ; the city claiming said strip as a part of one of its public parks, while the defendants alleged that it had been tendered by the city and accepted and occupied by the State as a part of the Capitol grounds. Held: —</p> <p>1. That in the absence of a deed or other written conveyance by the city to the State, resolutions of the General Assembly authorizing the city to provide a site for the Capitol free of expense to the State, and other Special Acts relating thereto and to the erection of the building and the grading of the grounds, also the votes' and proceedings of the municipal authorities pursuant to such authority, the action of the agents of the State and city in the premises, and the possession and control actually taken and exercised by the State over the strip in dispute for more than twenty years, with the knowledge and acquiescence of the city, were not only admissible in support of the defendants’ contention, but were sufficient as matter of law to constitute an express or implied dedication and transfer of the control of said strip by the city to the State.</p> <p>2. That the city had authority to devote the strip of land in question</p> <p>to the use made of it by the State, and for which it was accepted, such use being consistent with its continued use as a public park.</p> <p>3. That if the State’s use could be regarded as inconsistent with that</p> <p>to which the land was originally dedicated, the legislature nevertheless had power to authorize the city to devote it to such other and higher public purpose as would render its enjoyment more extended and general.</p> <p>4. That such authority from the State was sufficiently shown by the</p> <p>resolutions of the legislature and the fact that the land was ten- . dered to, and accepted by, the State itself.</p> <p>5. That no deed or written conveyance was required in order to render such transfer or dedication to the State effective.</p> <p>6. That the erection of the memorial in question was a proper exercise of the right of control so surrendered by the city to the State.</p> <p>7. That after its erection upon the Capitol grounds, the memorial would become the sole property of the State.</p> <p>The city claimed that the tender of land which was accepted by the State was one made in lieu of, not in addition to, the original tender, and did not include the strip in question. Held: —</p> <p>1. That testimony of persons present at a city meeting, as to what matters were discussed there, was not admissible as traditionary evidence of the general understanding of the citizens respecting the substitution of one site for the other ; nor was an article in a daily paper of that date admissible for such purpose.</p> <p>2. That if offered to prove that the second tender was in fact expressly made in lieu of the first, this evidence was properly excluded as hearsay.</p> <p>Traditionary evidence concerning facts of general interest affecting public or private rights is limited to proof of declarations of decedents, or persons supposed to be dead or unavailable as witnesses, as to ancient rights of which they are presumed or shown to have had competent knowledge, and which are incapable of proof in the ordinary way by living witnesses ; and this exception to the admission of hearsay evidence is not to be favored or extended.</p>

Appeal front an order and decree of the Court of Probate for the district of Meriden determining the amount of a succession tax payable to the State, taken by the treasurer of the State to the Superior Court in New Haven County and reserved by that court, Elmer, Ji, upon a demurrer to the reasons of appeal, for the advice of this court. Owen B. Arnold, a resident of Meriden, died testate.

Action to enforce the rights of the plaintiff under an option-contract for the purchase of certain bonds of a Connecticut street-railway company, and for an injunction, brought to the Superior Court in Fairfield County and abated ( Grayer, J.'), upon a plea to the jurisdiction, as to one of the two nonresident defendants; afterwards a demurrer to the complaint filed by the other defendants was sustained, Thayer, J., and judgment rendered for the defendants, from which the…

Action to recover damages for the illegal and summary-expulsion of the plaintiff from membership in the defendant society, brought to and tried by the Superior Court in Wind-ham County, Grager, J.; facts found and judgment rendered for the plaintiff for $200 damages, and appeal by the defendant.

, accepted the committee’s report; overruling a remonstrance thereto, and judgment was afterwards rendered (Robinson, JJ) in favor of the defendants, from which the plaintiff appealed. Julius Converse died intestate June 7th, 1892, leaving a widow, Mira L. Converse, and four children, namely, Eugenia C. Mathews, Lillia A. Lee, J. Carl Converse' and Louis S. Converse.

<p>General Statutes, § 2349, provides that if one resident of this State is indebted to another in such manner that the debt is liable to be assessed and set in the list of the creditor, and is not secured by mortgage on land in this State, the amount thereof shall, on request of the debtor, be deducted by the board of relief from his list and added to that of the creditor; while § 2351 declares that no greater amount of indebtedness shall be deducted than the assessed value of the property for which such indebtedness may have been contracted. Meld that in view of the settled policy of the State as shown by its legislation, § 2351 must be construed as restricting the operation of § 2349, and as impliedly prohibiting any deduction for unsecured indebtedness which was not contracted to obtain, and did not in fact obtain, for the debtor taxable property which was afterwards set in his list and made the subject of assessment. Such a deduction can only be made of an indebtedness which is fairly capable of a valuation at a sum equal to its amount.</p> <p>The legislation for more than one hundred years last past, in respect to certain features of taxation, reviewed and commented on.</p>

Action to recover moneys alleged to have been unlawfully appropriated and converted by the defendant to his own use, as well as damages for false entries, brought to and tried by the Superior Court in New Haven county, Elmer, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. The complaint contained two counts.

Action to recover the amount of a policy of life insurance, brought to the District Court of Waterbury and tried to the jury before Cowell, J.; verdict'and judgment for the plaintiff, and appeal by the defendant for alleged errors in the charge of the court.

Action to recover the amount of a promissory note and also for work and labor done and money expended for the defendant, brought to the City Court of New Haven and tried to the jury before Tyner,' J.; verdict and judgment for the -plaintiff, and appeal by the defendant.

Action of replevin, brought to the Superior Court in New Haven County and tried to the jury before Q-ager, J.; verdict and judgment for the defendant, and appeal by the plaintiff.

, confirming the action of the county commissioners of said county in granting a liquor license to one Patrick J. Fitzgerald.

Action to recover damages for negligence resulting in the death of the plaintiff’s intestate, heard in damages by the Superior Court in New Haven County, Thayer, J., and judgment rendered for nominal damages only, from which the plaintiff appealed.

Action against husband and wife to recover the amount of a tax and to foreclose a lien therefor, brought to and tried by the Court of Common Pleas in New Haven County, Hubbard, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiffs.

Action to recover damages resulting from a change of grade of a highway, brought to and tried by the Superior Court in New Haven County, Thayer, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs. Another action—Henry W. Munson v. The City of New Haven—identical in its issues, was tried with the foregoing ease and judgment rendered for the defendant.

Action to recover the statutory penalty for neglecting to execute and deliver a release deed of a satisfied mortgage, brought by appeal from a justice of the peace to the Court of Common Pleas in Hartford County and tried to the court, Coats, J. ; facts found and judgment rendered for the plaintiff, and appeal by the defendant.. Opinion filed with the cleric of the Court of Common Pleas in Hartford County.