Volume 77 — Connecticut Reports

Action to recover the balance alleged to be due for goods sold and work done, brought to and tried by the Court of Common Pleas in New Haven County, Hubbard, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action to recover rent, brought to and tried by the Superior Court in New Haven County, Elmer, J.; facts found and judgment rendered for the plaintiff for $1,025, and appeal by the defendant. The plaintiff and defendant are brothers. . Their father died in 1891 possessed of certain real estate in Waterbury, upon which was a two-tenement dwelling-house.

Action by a real estate broker to recover a commission for bis services, brought to the City Court of Stamford and thence by appeal of the plaintiff 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 defendants.

Petition for a row trial and other equitable relief, brougñt to the Superior Court in Fairfield County where a demurrer to the complaint was sustained (Case, J.) and, after a proposed amendment of the complaint had been disallowed (Thayer, J.), judgment was rendered (Elmer, J.) for the defendant, from which the plaintiffs appealed.

Action to set aside a judgment of discontinuance made in a former suit between the same parties, and to secure the restoration of such cause to the docket, brought to the Court of Common Pleas in Fairfield County and tried to the court, Curtis, J., upon a demurrer to the complaint filed by the defendant Williams, the other defendant, Martin, making no appearance; the court sustained the demurrer and rendered judgment for the defendant Williams, and the plaintiff appealed.

<p>It is questionable whether an ordinary action of ejectment is maintainable under General Statutes, § 4053,' which provides a special equitable remedy for determining and quieting the title to real estate. But if maintainable, it must be tried and determined as an action of ejectment and the plaintiff must prevail on the strength of his own title, not-on the weakness of the defendant’s.</p> <p>In the present ease the plaintiff alleged a title in fee to the land in dispute, which the defendants denied, and also averred title in themselves by adverse possession. The trial court found that the plaintiff had failed to prove a legal title in himself, and that the defendants had established a title in themselves by adverse possession. Held that inasmuch as the finding as to adverse possession was free from error, it was unnecessary to -consider the alleged errors of the trial court in reaching its conclusion that the plaintiff had failed to prove title in himself.</p> <p>The determination of the trial court upon the question of adverse possession will not be reviewed by this court as a conclusion from evidential facts, unless it appears that such facts, or some of them, are legally or logically inconsistent with that determination. Certain evidential facts reviewed and held not to necessarily impugn the conclusion reached by the trial court as to adverse possession.</p>

<p>Suit to have a marriage declared void, and to obtain alimony, brought to and tried by the Superior Court in Fairfield County, Gager, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.</p> <p>The plaintiff and defendant, of German birth and related to each other in the degree of uncle and niece, and both at the time residents of Danbury in this State, were married in the State of New York on June 16th, 1899, Each knew of their relationship, and each was ignorant of any law forbidding their marriage and believed that they could lawfully marry. The law of New York declares marriages between uncle and niece incestuous and void. After the marriage ceremony the parties, believing that they were lawfully married, returned to Danbury, where they thereafter lived as husband and wife upon a small farm until about May 1st, 1902, when the plaintiff, having for the first time learned that she had no right to live with the defendant as his wife, ceased to cohabit with him, and as soon as she could thereafter make the necessary arrangements left his house and immediately brought this action. Some time prior to said May 1st, 1902, the defendant became aware that his marriage was illegal. He so told the plaintiff, and asked her to tear up the marriage certificate. She, not being familiar with the English language, asked what “ legal ” meant. He replied that it meant that if he died she could not get any of his property. She thereupon refused to tear up the certificate, because she at the time believed that as long as she had the certificate she was married to him, and relying thereon she continued to cohabit with the defendant until on or about May 1st, 1902, when, having occasion to visit a lawyer, she learned the truth concerning her situation, with the result described.</p> <p>During the time the parties lived together the family consisted of the couple, a son of the defendant by a former marriage, and one or more boarders. No child was born to them. The plaintiff did the general housework, at times took care of, milked, fed and bedded five cows, aided in the care of three horses, and raised poultry and made butter. The expenses paid by the defendant for the plaintiff’s clothing and other matters, outside of ordinary living expenses, amounted to less than $50. From time to time during the period of their cohabitation the plaintiff let the defendant have various sums of her own money, amounting in the whole to $1,200, of which sum $700 has not been repaid. The value of the defendant’s property, which consists of real estate, is not less than $10,000. Substantially all the property the plaintiff owns is two small houses, from which she receives an income of from $14 to $20 per month when rented, and she is obliged to depend in part — as before her marriage — upon a son by a former husband for her support. It did not appear that during the period of the parties’ cohabitation the defendant acquired any property or made any profit from his farm over and above his living expenses.</p> <p>The complaint contained allegations of undue influence on the part of the defendant, inducing marriage. These allegations the court found untrue.</p> <p>The defendant filed an answer, and a cross-complaint in which he claimed judgment declaring said marriage void.</p>

Action of replevin, brought before a justice of the peace and thence by the defendant’s appeal to the Court of Common Pleas in New London County, where the plaintiff’s motion to erase the cause from the docket and his plea to the jurisdiction were overruled (Noyes, Ji), and the cause was afterward tried to the court; facts found and judgment rendered for the defendant, from which the plaintiff appealed.

Action to recover an indebtedness alleged to have accrued to the plaintiff upon a contract to which he was not a party, brought to the Superior Court in Litchfield County and tried upon demurrer to the complaint; the court, Elmer, J., sustained the demurrer and rendered judgment for the defendant, from which the plaintiff appealed.

<p>Application in the nature of an appeal from the refusal of the board of relief of the city of Hartford to reduce the assessors’ valuation upon certain shares of stock, taken to the Superior Court in Hartford County and tried to the court, Shumway, J.; facts found and judgment rendered affirming the action of the board of relief, and appeal by the taxpayers.</p> <p>This is an application to the Superior Court under § 3860 of the Revision of 1888 (Rev. 1902, § 2354), claiming equitable relief from an alleged illegal assessment of taxes. The applicants, hereinafter called plaintiffs, are shareholders of the capital stock of the ¿Etna Life Insurance Company. Their shares were assessed at their market value of $265 a share. The plaintiffs claimed that the shares should be assessed at a less value, viz. $215 a share, and appealed to the board of relief, who sustained the action of the assessors. In their complaint the plaintiffs claim that this assessment is illegal and that they are aggrieved by the action of the board in sustaining it, because the corporation in which they are shareholders owns certain real estate upon which it was assessed and paid taxes, and that a proportional sum should have been deducted from the market value of their shares, on account of the corporation’s ownership of real estate upon which it had been assessed and paid taxes, under § 3836 of the Revision of 1888 as amended in 1889. The complaint alleges that a portion of the capital stock of the ¿Etna Life Insurance Company, amounting to nearly $3,000,000, was invested in real estate of the value of over $500,000, upon which said company was assessed and paid taxes. The answer of the city denies this allegation, and the issue thus framed is substantially the only one presented by the pleadings.</p> <p>The court found this issue for the city and rendered judgment accordingly. It appears in the finding that the capital stock of the insurance company consisted of 17,500 shares of the par value of $100 each, $150,000 of which was paid in cash, and the remainder made up of stock dividends issued to shareholders; that the gross assets of its stock department, which is kept separate from its mutual or participating department, amount to $7,937,272.75 ; that the gross liabilities of the stock department amount to $5,231,631.27, of which $4,578,605.93 represents the insurance reserve on life policies; that the balance between these two sums, namely $2,705,641.48, represents the amount of its capital stock and surplus. It further appears that the court, in reaching its ultimate conclusion, found the other facts set forth in the finding, and ruled that § 3836 used the word “ capital ” as indicating the original capital and profits in excess of existing debts, and that upon the trial the burden of proof in respect to the issue presented, namely, the investment of a portion of this capital in real estate, was upon the plaintiffs.</p> <p>The appeal claims error in these rulings, and that certain of the facts found are inconsistent with the court’s ultimate conclusion of fact.</p>

Suit to determine the construction of the will of Augustus E. Lines of New Haven, deceased, brought to and reserved by the Superior Court in New Haven County, Ralph Wheeler, J., upon an agreed statement of facts, for the advice of this court. Augustus E. Lines of New Haven died November 8th, 1902, leaving a large estate consisting chiefly of personalty, and a will which was duly probated.

Actiosr to recover the amount of a death benefit, brought to the Superior Court in New London County and tried to the jury before Roraback, J.; verdict and judgment for the plaintiff for $1,138, and appeal by the defendant.

Action against an administrator for false representations on a sale, brought to the Court of Common Pleas of New Haven County where a demurrer to one of the two defenses was sustained (Gable, ■/.), and the case was tried on the other to the jury before Hubbard, J.; verdict and judgment for plaintiff against the defendant personally.

Actions by husband and wife to recover damages for personal injuries sustained by her and caused by the defendant’s negligence, brought to and heard in damages by the Superior Court in Fairfield County, Thayer, J. ; facts found and judgments rendered for the husband to recover $300 and the wife $500, and appeal by each of them for alleged errors in the rulings of the court.

<p>Action upon a probate bond, brought to the Superior Court in New London County and tried to the jury before Rorabacic, J., after a demurrer to the second and third defenses had been overruled and one to the fourth defense sustained (Rorabacic, J.') ; verdict and judgment for the plaintiff for |104 damages, and appeal by it for alleged errors in the rulings and charge of the court.</p>

Action to condemn certain land for the enlargement of a cemetery, and for an adjudication that the defendant was not organized in good faith but to prevent the plaintiff from acquiring said land, brought to the Superior Court in New London County where a demurrer to the complaint was overruled (Thayer, J.') and the cause was afterwards tried to the court, Ralph Wheeler, J. ; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

<p>Suit to determine the construction of the will of William L. Main of Ledyard, deceased, brought to and reserved by the Superior Court in New London County (Ralph Wheeler, J.), upon the facts alleged in the complaint, for the advice of this court.</p>

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, brought to the Superior Court in New London County and heard in damages to the court, Greorge W. Wheeler, J.; judgment for nominal damages only, and appeal by the plaintiff.

<p>The meaning of technical terms used in expressing a trade contract is to be determined by the usage common in that trade.</p> <p>The defendant, a retailer in Waterbury, on June 22d, ordered, by telegx-am, two car-loads of oats of the plaintiffs, wholesale grain dealers in Boston, which the latter agreed “to ship promptly, line via H. R.” The plaintiffs had already purchased ten car-loads of oats in Chicago to be consigned to them at Bridgeport, Conn., with the right to divert them at West Albany, as.they might thereafter order, and two of these cai's, which left Chicago within ten days of the receipt of the defendant’s order, were diverted at West Albany and sent to the defendant at Waterbury, where they arrived July 25th, when the defendant refused to receive them. The trial court found that by the usage of the Boston grain trade “ prompt shipment ” meant a shipment within ten days; that line viaS. R.” referred to shipments from points west of the Harlem River to places in New England, with the right in the dealer to divert the cars at Albany, Poughkeepsie, or New York City, to any point which he might designate; that from four to six weeks was a reasonable time for transporting a cax-load of oats from Chicago to Waterbury; and rendered judgment for the plaintiffs. Held: —</p> <p>1. That the contract did not limit the plaintiffs to a shipment from any particular point in the West.</p> <p>2. That Chicago might well be deemed a proper place of shipment un- . der the usage of the Boston-grain trade.</p> <p>3. That the rights of the plaintiffs could not be affected by the mistake of the defendant in supposing that the oats would be shipped from New York City.</p> <p>4. That West Albany was only a point of transfer, not of shipment. Judicial notice may be taken of the fact that the great grain fields of the country lie west of the Hudson River.</p>

Application in the nature of an appeal from the refusal of the board of relief of the city of New Haven to abate an addition of ten per cent, made by the assessors to the plaintiff’s tax list, taken to the Superior Court in New Haven County where a demurrer to the application was sustained ([Shumway, J.') and judgment rendered for the defendant, from which the plaintiff appealed.

<p>Action to recover damages for negligence resulting in the death of the plaintiffs’ intestate, brought to the Superior Court in New Haven County where a demurrer to the complaint was sustained QShumway, J.') and judgment was afterwards rendered (Thayer, J.') for the defendant, from which the plaintiffs appealed.</p> <p>The plaintiffs’ intestate, while riding on an elevator owned and operated by the defendant corporation, was thrown to the ground, whereby he was greatly injured, and as a result of the injuries died on the same day. The plaintiffs claim that the death of their intestate was due to the negligence of the defendant, and seek in this action to recover damages in accordance with the statute in such case made and provided.</p> <p>In the complaint the plaintiffs allege that the negligence complained of, and consequent death of their intestate, occurred on September 19th, 1902, and that they were appointed administrators on October 24th, 1902. The writ and complaint is dated October 20th, 1903, and returnable to the Superior Court in New Haven county on November 3d, 1903.</p> <p>The defendant demurred because it appeared that the action was not brought within one year from the neglect complained of, nor within one year from the date of the alleged injury, nor within one year from the date of the alleged decease of the plaintiffs’ intestate. The court (Shumway, J.~) sustained the demurrer and rendered judgment for the defendant. After the demurrer was sustained and before judgment, the court, upon motion and for cause shown, granted leave to the defendant to file a notice as to the evidence it intended to produce upon a hearing in damages.</p> <p>In the reasons of appeal the plaintiffs claim that the court erred in sustaining the demurrer and in granting the defendant leave to file the notice as to a hearing in damages.</p>

Action for damages for personal injuries alleged to have been caused by defendant’s negligence in furnishing defective dynamite to be used by plaintiff, brought to the Superior Court in Fairfield County and tried to the jury before Gager, J.; verdict and judgment for plaintiff, and appeal by defendant.

<p>Action to recover damages for breach of contract in the construction of a boiler, 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 $516, and appeal by the defendant.</p>

Prosecution for selling provisions from a temporary stand within one mile of a fair ground, in violation of § 1358 of the General Statutes, brought to the Criminal Court of Common Pleas in New London County where a demurrer to the information, upon the ground of the unconstitutionality of the statute, was sustained (Noyes, J.j and the accused discharged, from which judgment the State appealed.

Action to recover damages for false imprisonment, brought to the Superior Court in Hartford County and tried to the jury before Case, J.; verdict and judgment for the plaintiff for $75, and appeal by the defendant.

Action upon the bond of an administratrix, brought to and tried by the Court of Common Pleas in Fairfield County, Curtis, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff.

<p>On a hearing in damages after default in an action for negligence, the burden is upon the defendant to either disprove its own negligence or to prove contributory negligence of the plaintiff, in order to escape a judgment for substantial damages..</p> <p>The finding of the trial court that such burden has not been met must stand, unless the facts found show as matter of law either the contributory negligence of the plaintiff, or the absence of such negligence of the defendant.</p> <p>It is the duty of a street-railway company to afford every passenger a reasonably safe opportunity to alight from the car.</p> <p>While the defendant’s street-car was approaching its terminus and moving so slowly that the motion was x>ractically imperceptible to the passengers, the conductor called out, “ Westport, change for Norwalk,” alighted, and began preparing for the return trip, whereupon the plaintiff, a woman, believing that the car had stopped, stepped off with other passengers, but was thrown down by the motion and injured. Held:—</p> <p>1. That a finding to the effect that the defendant had not proved plaintiff’s negligence, nor disproved its own, would not be disturbed.</p> <p>2. That the question whether the words and acts of the conductor amounted to an invitation to the plaintiff to step out of the car when she did, was, under the peculiar circumstances, a question of fact rather than of law.</p>

Action in the nature of conversion, brought to the City Court of New Haven and tried to the jury before Tyner, J.; verdict and judgment for the defendants, and appeal by the plaintiff.

Action to recover money alleged to have been paid at the request of the defendant, brought by appeal from a judgment of a justice of the peace to the Court of Common Pleas in New Haven County and tried to the jury before Bishop, J.; verdict and judgment for the plaintiff, and appeal by the defendant. The complaint contained eleven paragraphs, each purporting to allege a separate cause of action.

Action to recover damages for injuries caused by a runaway borse, brought to the Court of Common Pleas for New Haven County and tried to the jury before Bishop, J.; verdict and judgment for plaintiff, and appeal by the defendant.

Action by a husband to recover damages for the loss of the services of his wife caused by the alleged negligence of the defendant, brought to the Superior Court in New Haven County where a demurrer to the complaint was sustained (G-ager, J.) and judgment rendered for the defendant, from which the plaintiff appealed.

<p>Action to recover the amount of a book account for groceries sold and delivered, brought by appeal from a judgment of a justice of the peace to the Court of Common Pleas in New Haven County and tried to the jury before Bishop, J.; verdict and judgment for the defendant, and appeal by the plaintiff.</p>

<p>A tract of land, desired by New Haven for a public park, was owned in common by XT and X. Because of a “ paint mine ” therein, XT demanded a price for the land which the city was unwilling to pay, denying the existence of such mine. By mutual agreement, therefore, X conveyed to the city his one-half interest in the land, without reservation, while Ws deed contained the following clause: “reserving, however, to said JET, but for a period not to exceed five years from the date hereof, the right to open a supposed paint mine on said land, and to work the same thereafter as a paint mine to its full extent, within the limits of the land herein conveyed; provided, however, that the grantee may at any time within six years from the date of this conveyance purchase and extinguish the right herein reserved, by paying therefor such sum as shall be agreed upon by three disinterested persons.” Said deeds stated that the land was conveyed “ solely for the purposes of a public park forever.” In an action to determine the rights of the parties it was held: —</p> <p>1. That the limitation of five years applied to the right to open the paint mine, and not to the right to work it after it had been opened.</p> <p>2. That a continuous working of the mine until its exhaustion was not required.</p> <p>3. That the failure of IT to work the mine for several years was not necessarily and as matter of law an abandonment of his right.</p> <p>4. That S took the exclusive mining right, which was rather in the nature of a reservation than an exception, since it gave him a greater interest than that which he had before possessed as tenant in common with L.</p> <p>5. That such right was an estate in fee transmissible to his heirs.</p> <p>6. That whether the clause quoted be called an exception, a reservation, or an agreement that II should have the specified mining right, it would nevertheless be effectual; since the city, although it did not execute the conveyance, became a party to the transaction by accepting the deeds and taking possession thereunder.</p> <p>7. That the performance of the agreement by H was sufficient to take it out of the statute of frauds.</p>

Action to determine the validity and construction of the will of Edwin Marble of New Haven, deceased, brought to and reserved by the Superior Court in New Haven County, Ralph Wheeler, upon the facts stated in the complaint, for the advice of this court.

<p>Action upon a replevin bond, brought to the Superior Court in New Haven County and tried to the jury before Ralph Wheeler, J. ; verdict and judgment for the defendants, and appeal by the plaintiff.</p>

Suits to restrain the selectmen and town school committee of Hamden from expending the funds of the town for certain purposes, and the latter from selling a schoolhouse and purchasing land for a new one, brought to the Superior Court in New Haven County. The first case, Benham v. Potter, was tried to the court, Case, J., and judgment rendered for the plaintiffs, from which the defendants constituting the town school committee appealed.

Prosecution for perjury, brought to the Superior Court in New Haven County and tried to the jury before. Ralph Wheeler, J„; verdict and judgment of guilty, and appeal by the accused.

Action to set aside a conveyance of real estate by the plaintiff’s testator, and to recover possession and mesne profits, brought to and tried by the Superior Court in New Haven County, Case, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants.

Action to recover a commission rendered as a real estate broker, brought by defendant’s appeal from a judgment of a justice of the peace to the court of Common Pleas in New Haven County and tried to the jury before Bishop, J. ; verdict and judgment for the defendant, and appeal by the plaintiff.

<p>Action by general creditors for a judgment against their debtor and the appropriation of certain equitable assets to the payment of the judgment, brought to the Court of Common Pleas in New Haven County, where a demurrer to one of the defenses in the answer was overruled (Hubbard, J.') and the case was reserved (Bishop, J.) for the advice of this court on a special finding of facts.</p>

, confirming an assessment óf $36,879 against the plaintiff for the cost of paving a portion of a street in New Haven with asphalt.

Action of interpleader, brought bo the Superior Court for Hartford County where the allegations in the complaint were found to be true, the defendants ordered to inter-plead, which they did, and the cause reserved (George W Wheeler, J.') for the advice of this court, there being also a special finding of further facts.

Prosecution for conspiracy, brought to the Superior Court in New Haven County and tried to the jury before Shumway, J.; verdict and judgment of guilty, and appeal by the accused. The information contains six counts charging conspiracies to injure as many different parties, each of which is alleged to have been committed by the eight named defendants.

<p>Appeal from a judgment of the Superior Court in New Haven County, Gager, J., refusing to admit to probate a certain written instrument as part of the will of Philo S. Bennett of New Haven, deceased.</p>

Action to secure an accounting of the funds of the Mor-, gan School of Clinton and the removal of the trustees, and for other relief, brought to the Superior Court in Middlesex County and transferred by stipulation of the parties to the Superior Court in New Haven County and referred to a committee (Henry C. White, Esq.) who heard and reported the facts; the court, Shumway, J., accepted the committee’s report, overruling a remonstrance thereto, and rendered judg.-' ment for…

Actions in the nature of quo warranto to determine the legality of the incorporation of South Norwalk as a town, brought to the Superior Court in Fairfield County and reserved by that court, Rorabaeh, J., upon a finding of facts made by a committee, for the consideration and advice of this court. These two cases were argued together. The case of State ex rel.

Indictment for murder in the first degree, returned to the Superior Court in Fairfield county and tried to the jury before George W. Wheeler, J.; verdict and judgment of guilty of murder in the second degree, and appeal by the accused.

Action in the nature of conversion, brought to and tried by the Court of Common Pleas in Fairfield County, Curtis, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action to recover the amount of a policy of life insurance, brought to the Superior Court in New Haven County where the second defense was stricken out (Thayer, J.) upon motion, and the cause was afterwards tried to the jury before Grayer, J. ; verdict and judgment for the plaintiff, and appeal by the defendant.

Action to recover damages for false representations respecting the acreage of a farm sold by the defendant to the plaintiff, brought to and tried by the Court of Common Pleas in Litchfield County, Welch, J. ; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

<p>A reason of appeal alleging that the trial court “ erred in charging the jury,” is too general, and raises no question which this court is bound to review.</p> <p>By accepting and using a deposit book containing the by-laws of a savings-bank, the depositor assents to them as a part of the contract of deposit.</p> <p>A by-law of a savings-bank provided that moneys withdrawn should be paid only to the depositor or his order, or to his legal representatives. Held that in the absence of any modifying agreement, the bank could not avoid liability for payments made upon forged orders to one who had fraudulently obtained possession of the deposit book, even though made in good faith and in the exercise of ordinary care.</p> <p>Another by-law provided that the bank would not be responsible to any depositor for any fraud that might be practiced upon its officer’s by forged signatures, of by presenting a depositor’s book and drawing money without the knowledge or consent of the owner. Held that this regulation and its acceptance by the depositor absolved the bank for payments to the wrong person which were made by it in good faith and in the exercise of reasonable care, but not for those which by the use of such care it might have prevented.</p> <p>Contributory negligence upon the part of the depositor is no defense to the bank for payments negligently made by it to the wrong person; nor under such circumstances is the bank in a position to invoke the doctrine of equitable estoppel against the depositor. Where the question for the jury is whether the defendant exercised reasonable care under all the circumstances, the trial court may well refuse to instruct them as to the effect or bearing upon that question of a single fact or item of evidence.</p> <p>The question whether a savings-bank was negligent in paying money on forged orders is one of fact for the jury.</p>

Action to recover damages for personal injuries resulting from a fall upon an alleged defective sidewalk, brought to the Superior Court in Litchfield County, where a demurrer to the complaint was in the main overruled (Ralph Wheeler, A) and one to a portion of the answer was sustained (Rorabaclc, J.'), and the cause was afterwards tried to the jury before Rorabaek, J.; verdict and judgment for the plaintiff for $5,000, and appeal by the defendant.

, affirming an order of the Court of Probate for the district of Woodbury which required certain land of an intestate to be distributed as ancestral estate.

Action in the nature of an appeal from the doings of the board of relief of Middletown, brought to the Superior Court in Middlesex County where a demurrer to the complaint was sustained (Shumway, The plaintiff is a bridge company, and in pursuance of a charter granted by the State has built and maintains a toll-bridge across the Connecticut River connecting the town of Middletown on the -west side of the river with the town of Portland on its east side.

Action to recover for services rendered in superintending the erection of a townhall, brought to the Superior Court in Hartford County where the plaintiff was nonsuited upon motion of the defendant in a trial to the jury before Case, J., and from the refusal of the court to set aside such judgment the plaintiff appealed.

Action to recover damages, for polluting a stream with sewage and other noxious substances, brought to and heard in damages by the Superior Court in Hartford County, Case, J.; facts found and judgment rendered for the plaintiff for $1,850, and appeal by the defendant.

Prosecution for selling merchandise in violation of the statute concerning itinerant vendors, brought to the City Court of New Haven and thence, by appeal of the accused, to the Criminal Court of Common Pleas in New Haven County and reserved by that court, Hubbard, J., upon a demurrer* to the complaint, for the advice of this court.

Action to recover for goods sold and delivered, brought by-defendant’s appeal from a judgment of 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 recover damages for injuries to a pair of horses alleged to have been caused by the negligence of the defendant’s servant in driving an electric automobile, brought to and heard in damages by the Court of Common Pleas in Hartford County, Coats, J.; facts found and judgment rendered for the plaintiff for $325, and appeal by the defendant.

Action in the nature of conversion for a car-load of potatoes, brought to and tried by the Court of Common Pleas in Hartford County, Coats, J.; judgment for plaintiff for $286, and appeal by the defendants.

Action for an injunction against the further obstruction of an ancient drain or ditch, and for damages, brought to and tried by the Court of Common Pleas in Hartford County, Coats, J.; judgment granting an injunction and awarding $15 damages.

Action to recover for goods sold and delivered, brought to the Court of Common Pleas in Hartford County and tried to the court, Coats, J. ; facts found and judgment rendered for the plaintiff for $129, and appeal by the defendant.

<p>■ Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, brought to and heard in damages by the Superior Court in Hartford County, Greorge W. Wheeler, J.; facts found and judgment rendered for the plaintiff for $2,500, and appeal by the defendant.</p>

Actions to recover damages for negligence causing death, brought to the Superior Court in New London County where a demurrer to the complaint in each case was overruled (Ralph Wheeler, J.') and the causes were afterwards heard in damages to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff in each case, and appeal by the defendant. * In this court the appellee Mooney filed a plea in abatement, to which the appellant demurred.

Action for the conversion of a piano, brought to the City Court of Meriden and tried to the court, Pearne, Acting-Judge; judgment for the plaintiff and appeal by defendant.

Action to obtain a conveyance and possession of certain real estate, together with, the rents and profits thereof, and also an injunction, brought to and tried by the Superior Court in New Haven County, Thayer, J.; judgment for the plaintiff, and appeal by the defendant.

Shit to obtain a conveyance of certain real estate or a decree vesting the title in the plaintiff, and the reformation of a deed, brought to and tried by the District Court of Waterbury, Peasley, Deputy-Judge; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action against husband and wife to recover for articles procured by the wife and used for the support of the family, brought to the District Court of Waterbury where a demurrer to a special defense of the husband was overruled (Peasley, Deputy-Judge) and the cause was afterwards tried to the jury before Welch, Acting-Judge; verdict and judgment against the wife but in favor of the husband, and appeal by the plaintiff.

Action in the nature of conversion, brought to the City Court of New Haven and tried to the jury before Tyner, J. ; verdict and judgment for the plaintiffs for $69, and appeal by the defendant. In this court the appellees filed a plea in abatement on the ground that the appeal was taken to the third, instead of the fourth, Tuesday of October, which the appellant moved to expunge because not filed until after the time prescribed therefor.

Action to recover damages for the unlawful and forcible' seizure, removal and detention of household goods and furniture, brought to the Superior Court in New Haven County, where a demurrer to the second defense was sustained ( Gager, J.') and the cause was afterwards tried to the jury before Ralph Wheeler, J.; verdict and judgment for the plaintiff for $558, and appeal by the defendant.

<p>A tenant by the curtesy initiate is seized of a freehold estate for life in his own right, in lands inherited by his wife, while her interest is merely a reversionary one.</p> <p>In the present case Mrs. A leased premises, inherited by her, to the defendant, who was then in possession, for a term of years. Her husband, who was tenant by the curtesy initiate, did not sign the lease, nor was it witnessed by two witnesses; but he had always permitted his wife to manage the property as if she were a feme sole and owned it absolutely. Shortly after making this loase, A united with his wife in executing a warranty deed of the premises to the plaintiff, in which the lease was referred to and excepted from their covenant against incumbrances. Held:—</p> <p>1. That by joining with his wife in this conveyance A had sufficiently indicated his election to treat the lease as effectual to pass Mrs. A.’s interest during the term thereby created.</p> <p>2. That, thus considered, the defendant’s possession under it, at the date of the warranty deed to the plaintiff, did not invalidate that deed, which was to be treated as a conveyance of the interest of each and both of the grantors in the reversion.</p> <p>Upon the first rent day after the plaintiff had received her deed, she directed the defendant, who had asked her to whom it should pay the rent, to pay it to Mrs. A. Upon its receipt, Mrs. A paid to the plaintiff that proportion of it which had accrued since she (the plaintiff) received her title, which the plaintiff accepted. Held that the plaintiff had thereby elected to accept an attornment by the lessee and so to confirm the lease, and having thus established the relation of landlord and tenant between herself and the defendant could not thereafter disaffirm it and eject the defendant as a trespasser.</p>

Suit to determine the construction of .the will of Harriet Voorhees of New Haven, deceased, brought to and reserved by the Superior Court in New Haven County, George W. Wheeler, J., upon the facts stated in the complaint, for the advice of this court.

<p>A testator gave all his property to “ my executors ... in trust . . . to hold on the following trusts ”: to pay to A one half of the net annual income; and to provide for the support of B during his life, to an amount not exceeding §500 annually. No provision was made for the disposition of any surplus income. The executors were empowered to sell any real estate if they deemed it necessary for the interest of the trust, and to mortgage the property in order to secure funds for its improvement. The will then declared that upon the death of A and B the trust should cease, and the trust estate should “ belong to my executors and the children” of C, absolutely, one third to each executor and one third to C’s children. In a suit to construe the will it was held:—</p> <p>1. That A was entitled to one half of the clear, net, annual income, without deduction for payments made for B's support.</p> <p>2. That during the continuance of the trust the executors took no beneficial interest, as individuals, in any surplus or unexpended income.</p> <p>3. That such income was to accumulate in their hands and be added from year to year to the principal of the trust fund.</p> <p>4. That if income had been diverted to the payment of expenses properly chargeable to principal, it must be restored, and, if necessary, by a sale of the realty.</p> <p>Testamentary authority to sell, standing alone and unaided by other provisions of the will, does not either involve or imply authority to mortgage.</p> <p>Through the action of the Court of Probate, under General Statutes, §253, real estate held in trust may be mortgaged, whenever such mortgage will, in the opinion of such court, best promote the interest of the beneficiaries of the trust.</p>

<p>.Action to condemn two shares of the capital stock of the New Haven and Derby Railroad Company owned by the defendant, brought to and reserved by Hon. Edwin B. Gager, a judge of the Superior Court, upon a demurrer to the complaint, for the advice of this court.</p> <p> Superior Court is advised to overrule demurrer. </p>

<p>Suit to obtain tbe cancellation and delivery of several promissory notes, also for an injunction and damages, brought to the Superior Court in Fairfield County where a demurrer to the complaint, filed by the Southport National Bank, was sustained ('Roraback, J.) and judgment rendered in its favor, from -which the plaintiff appealed.</p>

Action for damages for obstructing a highway by which the plaintiff, an abutting proprietor, was deprived of reasonable access to and use'of his premises, brought to the Superior Court in Fairfield County and heard in damages by the court, Thayer, J., after a default; facts found and judgment rendered for the plaintiff for substantial damages, and appeal by the defendant.

ACTION in the nature of trespass qu. el. fr., brought to and tried by the Court of Common Pleas in Fairfield County, Curtis, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action to recover the amount of a promissory note and to set aside certain conveyances of real estate alleged to have been made in fraud of creditors, brought to the Court of Common Pleas in Fairfield County and reserved ( Curtis, J,), upon an agreed statement of facts, for the advice of this court. The copartnership otC.' B. Wheeler & Co. was organized in 1896 and dissolved May 81st, 1900. Its members were Charles B. Wheeler, Charles B. Marsh and Edward H. Marsh.

Action to recover for rent, by an assignee of tbe claim, brought to the City Court of New Haven where the defendant filed a plea in abatement to the jurisdiction, which was sustained, Dow, J., from which judgment the plaintiff appealed.

Action of replevin, brought to the Court of Common Pleas in New Haven County and tried to the jury before Bishop, J.; verdict and judgment for the plaintiff, and appeal by the defendants.

<p>Suit to determine the construction of the will of Stephen Jordan of Bridgeport, deceased, brought to and reserved by the Superior Court in Fairfield County, Robinson, J., upon the facts stated in the complaint, for the advice of this court.</p>

Action by a receiver against the directors of an insolvent corporation to recover damages for an alleged fraudulent diversion of its funds in the payment of dividends, brought to and tried by the Superior Court in Fairfield County, Gager, J. ; facts found and judgment rendered for the defendants, and appeal by the plaintiff.

Action to recover damages for causing the death of the plaintiff’s intestate by negligence, brought to and heard in damages by the Superior Court in New Haven County, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff for $8,000, and appeal by the defendant. The defendant manufactured and installed elevators. One Maynard was employed to superintend and take charge of this department of its business. He was an experienced and competent man.

Application in the nature of an appeal from an assessment of benefits claimed to have accrued to the plaintiff from the elimination of a railroad grade-crossing in New Haven, brought to the Superior Court in New Haven County where a demurrer to the application was overruled (Shwm• way, J.) and afterward, upon the admissions of the answer, judgment was rendered (Ralph Wheeler, J.') for the plaintiff, from which the defendant appealed.

Action to recover damages for injury' to the' riparian and littoral rights of the plaintiff, an owner of land upon a bay or cove of the Thames River, brought to the Superior Court in New London County and heard in- damages to the court, Greorge W. Wheeler, J., after a demurrer to the complaint had been overruled (fRor aback, J.) ; facts found and judgment rendered for the plaintiff for $400, and appeal by the defendant.

Action for breach of certain contracts relative to stock transactions, brought to the Superior Court in Hartford County, where a demurrer to the complaint was overruled (Robinson, A) and the cause tried to the jury before Oase, J.; verdict and judgment for plaintiff. There were twenty-two of these contracts, all in writing, and in most respects similar in form. They were made between May 1st, 1901, and December 5th, 1902.

<p>Action against stock brokers to recover damages for an alleged wrongful sale of stocks bought upon margin and held by them as collateral security, brought to the Superior Court in Hartford County and tried to the jury before Case, J.; verdict and judgment for the plaintiff for $3,500, and appeal by the defendants.</p> <p>The complaint in this action is as follows : “ 1. The plaintiff, on or about January 1st, 1903, contracted with the defendants, for a commission to be paid to them, to purchase for him shares of stock in certain corporations as he might direct, and to obtain for and loan to him snch sums of money in addition to the amount deposited by the plaintiff with them as should be necessary to pay for said stock as purchased; the plaintiff then agreeing to furnish such additional security as they might require as collateral for such loan. 2. The defendants thereafter purchased for the plaintiff shares of stock . . . as follows: (describing the stocks). 3. In compliance with said agreement, the defendants advanced and loaned to the plaintiff, and on his account, sums of money from time to time amounting, in the whole, to the sum of dollars. 4. The plaintiff then pledged and delivered to the defendants, as collateral security for such loan, in addition to the stock so purchased, the following: (describing them). 5. The defendants accepted said bond and stocks as collateral security, as aforesaid, and it was then and there understood and agreed between the defendants and plaintiff that if, at any time, the defendants desired further security for or payment of said loan, reasonable notice should be given the plaintiff and he should have a fair opportunity to furnish additional security or pay said loan, before such pledged securities were sold or in any manner converted by the defendants. 6. On the morning of June 10th, 1903, the defendants advised the plaintiff, by letter, received in due course of mail, that they required additional security for said loan to be deposited with them on or before the commencement of business on that day. 7. The plaintiff, on the same day, and before the commencement of business, delivered and pledged to the defendants, as such collateral security, twenty-seven shares of the stock of The National Fire Insurance Company, of the value of nine thousand dollars, which the defendants then and there accepted through their agent, Niles P. Hough, and then and there agreed to continue said loan to the plaintiff and not to sell or dispose of said pledges, securities, or any part of them, without reasonable notice to the plaintiff and giving him a full and fair opportunity to pay said loan or make other provision in regard to the same. 8. Notwithstanding said agreement and the pledge of said additional collateral security, the defendants, on the same day, without notice to the plaintiff, sold said collateral securities so pledged by the plaintiff and converted the amount received therefor to their own use, and then returned to the plaintiff said twenty-seven shares of stock of The National Fire Insurance Company.”</p> <p>The defendants by their answer admitted that they purchased said stocks and advanced money from time to time for the plaintiff; that plaintiff pledged therefor the stocks and the bond described in paragraph 4, and that they were accepted by the defendants ; and in effect denied the remaining allegations of the complaint.</p> <p>Upon the trial to the jury the plaintiff offered evidence to prove these facts: The defendants were stockbrokers and members of the New York stock exchange, with a branch office, under the charge of Niles P. Hough, at Hartford, connected by private telegraph and telephone wires with the New York office. About January 1st, 1903, the plaintiff, who resided in Hartford, entered into a contract with the defendants by which, upon plaintiff’s orders, they were to buy and sell stocks for him upon the New York stock exchange, they advancing ninety per cent, of the purchase price, and the plaintiff the remaining ten per cent., in cash or good collateral securities. The defendants were to hold the stocks so purchased in pledge, as security for their advancements; were to call for no other deposit of cash or collateral thereon, nor hold him in default, unless and until his deposit in their hands should depreciate to within three or four per cent, of the market value of the stocks involved, in which case the plaintiff was to have ample notice and opportunity to make, either in cash or good collateral, the further deposit demanded of him, and only upon his failure to respond thereto and make the necessary deposit were the defendants to secure themselves by a sale of the pledged securities. The defendants were to receive one eighth of one per cent, commission on the par value of stocks bought and sold, and interest at the rate of six per cent, per annum on money advanced. Having theretofore made and kept good the deposit required by said arrangement upon purchases made by defendants, and having on June 4th, 1903, been called upon by the defendants for a deposit of $3,000 to protect his margin, the plaintiff informed Hough that his account seemed all right as the market then stood, and that if any fluctuation in values called for such action he would make his account good. Hough replied that that was all right. In the afternoon of June 9th Hough notified the plaintiff that unless he deposited with him additional margin to the amount of $10,000 before the opening of the stock exchange at 10 o’clock the next morning, the defendants would protect their account by selling out his pledged securities upon the opening of the market on said June 10th, and that formal notice would come by mail, which written notice the plaintiff received shortly before the opening of the stock exchange the next morning. When Hough gave such notice on the 9th, the plaintiff proposed to put up as collateral, and in satisfaction of the defendants’ demands, twenty-seven shares of the stock of the National Fire Insurance Company of Hartford, and asked Hough if that would be acceptable security, and was told it would be all right. On presenting said stock the next morning the plaintiff called Hough’s attention to the fact that it fell short of $10,000, being of the value of about $8,500. Hough said it was near enough, and received and accepted it in full satisfaction of the demand for margin. At plaintiff’s request Hough immediately telegraphed the defendants that said stock had been turned over to him, and shortly before 10 o’clock received an answer that the stock was not acceptable and demanding $10,000 in cash before the opening of the stock exchange, in default of which they would sell his stock for their protection, which message was immediately given to the plaintiff who was still in Hough’s office. The plaintiff declined to make any other deposit and protested against the threatened sale of the stocks. The defendants, at the opening of the stock exchange on that day, sold the stocks held by them, excepting the collateral securities referred to in paragraph 4 of the complaint. They returned to the plaintiff three shares of the stock of the Wells Fargo Company, a $1,000 Hartford, Manchester and Rockville Tramway Company bond, and $155.54 in cash. Before 11 o’clock the sale was reported to the plaintiff at Hough’s office, and said National Fire Insurance stock was offered back to him, which he refused to take. On the 13th of June the- market value of the stocks so sold was about $7,000 more than at the time of said sale. During the remainder of the month of June the plaintiff was pecuniarily unable to repurchase said stocks at any price at which they were purchasable in the market.</p> <p>The defendants claimed to have proved that by their agreement with the plaintiff he was required to keep his ten per cent, margin good upon notice, and that the notice he was to receive, and the conduct of the parties in all other respects in said transactions, was to be governed by the rules of the New York stock exchange ; that from the 4th to the 10th of June.the plaintiff’s margin was short of the amount required by said agreement, and the market during said period was steadily declining, and the plaintiff was repeatedly called upon to put up additional margin as required by his agreement, or to reduce his holdings, and was warned that otherwise the defendants would be compelled to protect themselves by a sale of the stocks, and that the plaintiff promised to comply with said demands but failed to do so; that on the afternoon of June 9th Hough, under instructions from the defendants, notified the plaintiff that unless he put tip additional margin of $10,000 before the opening of the market on the following day, defendants would sell his stocks at the opening of the market, and that the plaintiff then informed Hough that he was unable to put up any additional margin; that before the opening of the market on June 10th the plaintiff offered to Hough the said National Fire Insurance Company stock, which offer was immediately telegraphed to the defendants who immediately declined said offer, and said stock was never accepted; that thereupon on said 10th of June between 10 and 11 o’clock said stocks, carried and held by the defendants, were sold in the regular course of business on the New York stock exchange for their full market value, and the three shares of stock, the bond of $1,000, and $155.54 in money, as above stated, were thereafter returned to the plaintiff; that the defendants notified the plaintiff of said sale on the morning it was made, and of the prices at which said securities were sold, and at the same time notified the plaintiff that the market price of said stocks was then lower than at the time of such sale, and offered to buy them back for the plaintiff, provided he would furnish the defendants with $10,000 cash margin or acceptable stock exchange collateral, which offer the plaintiff refused, although at that time and thereafter during the remainder of said day said stocks could have been bought upon the New York stock exchange for less than the amount for which they had been sold by the defendants ; and the plaintiff did not then or thereafter repurchase said stocks.</p> <p>The plaintiff had a verdict for $3,500.</p>

Action against a corporation for an injury to the person caused by its negligence, brought to the Superior Court in New Haven County and tried upon demurrer to an answer alleging that suit was not brought within one year from the date of the injury ; judgment for defendant (Slvwmway, J.) and appeal by plaintiff.

Action to restrain the defendant from drawing off the water of a lake or pond during the summer season, thereby creating an alleged nuisance affecting the health of the plaintiff and the value of her premises, brought to the Superior Court in Litchfield County and tried to the court, Elmer, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, brought to and heard in damages by the Superior Court in Hartford County, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff for $3,500, and appeal by the defendant.

Action of interpleader to determine the rights of adverse claimants to a sum of money received by the plaintiff as a dividend upon stocks held by him in trust, brought to the Superior Court in Hartford County and tried to the court, Q-eorge W. Wheeler, J.; facts found and judgment rendered, from which all the claimants appealed.

Action to recover damages for the neglect of the defendant, the plaintiff’s local agent at Norwalk, to reduce the amount of fire insurance upon a certain risk, as directed by the plaintiff, in consequence of which it was obliged ‘to pay a fire’ loss of $537 more than it would have been liable for had the reduction been made, brought to the Superior Court in Fairfield County where a demurrer to the answer was overruled (Ror aback, J.) and the plaintiff was afterwards…

Action to recover for materials furnished and services rendered, brought to and tried by the Court of Common Pleas in Fairfield County, Curtis, J.; judgment for plaintiff, and appeal by defendants.

<p>Whatever may have been the rule formerly, and as applicable to common-law actions, it is not now, under our Practice Act, essential to the sufficiency of a complaint framed to recover upon a domestic, public statute not penal, that the statute be either counted upon or recited; it is enough if the averments of the complaint are such as to show that the action is brought upon the statute and not otherwise.</p> <p>General Statutes, § 4487, making the owner or keeper of a dog liable for damage done by him, is remedial and not penal.</p> <p>In the present case the complaint merely alleged the defendant’s ownership of the dog, and that it attacked and bit the plaintiff, who suffered great pain and was put to pecuniary expense. Held that these averments described an action upon the statute, but not one at common law, there being no allegation of scienter nor averment of facts dispensing with the necessity of such an allegation.</p>

Action to recover damages for fraud and deceit in obtaining goods from the plaintiff: upon the credit of the defendant’s husband, brought to the City Court of New Haven and tried to the jury before Tyner, J.; verdict and judgment for the defendant, and appeal by the plaintiff.

Action to recover for money paid for the defendants, brought to and tried by the Court of Common Pleas in New Haven County, Hubbard, J.; judgment for the defendants, and appeal by the plaintiff.'

Action in the nature of trespass qu. el. fr., brought to the Court of Common Pleas in New Haven County and tried to the jury before Bishop, J.; verdict and judgment for the plaintiff, and appeal by the defendants.

Action upon the so-called common counts, brought to the Court of Common Pleas in New Haven County and tried to the court, Hubbard, J.; judgment for plaintiff, and appeal by defendant. The original complaint contained all the common counts except those for an account stated, money had and received by the defendant for the use of the plaintiff, and for the use and occupation of land. The indebtedness alleged under each paragraph or count was $178.50.

Complaint by an elector of the town of New Haven claiming to be aggrieved by a ruling of tlie moderator rejecting his ballot cast at the State election held in New Haven in November, 1904; brought to… Held: in the third judicial dis - trict on the third Tuesday of January, 1905.

Action for an alleged assault and battery, brought to the Court of Common Pleas in New Haven County and tried to the jury before Hubbard, J.; verdict for the plaintiff for $100, which the trial court refused to set aside, and appeal by the defendant.

Suit to construe the will of Philo S. Bennett of New Haven, deceased, brought to the Superior Court in New Haven County, where a demurrer to the substituted answer of the defendant William J. Bryan was sustained (Thayer, J.') and his motion for leave to file a cross-complaint was denied (Gteorge W. Wheeler, J.); the case was then tried to the court (.Robinson, J.) and judgment rendered that the clause of the will containing a bequest of $50,000 in trust was inoperative, and…

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, brought to and heard in damages by the Superior Court in Fairfield County, Elmer, J. ; facts found and judgment rendered for the plaintiff for $5,000, and appeal by the defendant. The defendant was engaged in building a stone retaining-wall along the Naugatuck River in Ansonia.

<p>Appeal from a decree of the Court of Probate for the district of Bridgeport admitting to probate a, certain written instrument as the last will of Ann Bohan of Bridgeport, deceased, taken to the Superior Court in Fairfield County and tried to the jury before Rorahack, J.; verdict in favor of the contestants, which the court, upon motion of the executor, set aside as against the evidence, and appeal by the contestants.</p> <p>Ann Bohan died at Bridgeport December 24th, 1902, after an illness of some three weeks. December 16th, 1902, she made a will; December 18th, 1902, she made another will. The latter will was admitted to probate by the Court of Probate for the district of Bridgeport on January 21st, 1903. Mary J. Birdseye, and her daughter Mary T. Birdseye as executrix and legatee under the first will, appealed from this order to the Superior Court, The reasons of appeal were, (1) the will was not legally executed; (2) the testatrix did not have testamentary capacity; and (3) the will was procured through undue influence. The jury returned a verdict finding the issue for the appellants, and that the will in question was not the last will and testament of Ann Bohan. The court (Rorahack, J.) set the verdict aside and ordered a new trial. The appeal to this court assigns as the only reason of appeal, that the Superior Court erred and mistook the law in setting aside the verdict and granting a new trial.</p>

Action of scire facias against a garnishee, brought to and tried by the Superior Court in New Haven County, Case, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

<p>Action upon a promissory note, brought to and tried by the Superior Court in New Haven County, Oase, J.; facts found and judgment rendered for the plaintiff against all the defendants save Weinick, and appeal by them.</p> <p>One Freedman desired to purchase lumber of the W. A. Beckley Company, lumber dealers, and to establish with the company a present and continuing credit for purchases to be made forthwith and in the future. The company demanded references. Instead, Freedman proposed to indorse over a good note as collateral security for any indebtedness he might incur. This being acceptable to the company, Freedman indorsed and delivered to it the negotiable promissory note of the four defendants now in suit. It was for the sum of $2,000 and payable to Freedman six months after date. It was not then due. The company thereupon furnished Freedman lumber to the amount of between $700 and $800, and continued for a period of years thereafter to supply him with lumber, all in reliance upon the security of said note, which it continued to hold until January, 1902, when a receiver for said company was appointed. The company took the note and continued to hold it without knowledge or notice of any claim that it was accommodation paper or that there were any claimed defenses to it, either legal or equitable, as between Freedman and the makers.</p> <p>At the time of the appointment of the receiver, the indebtedness from Freedman to the company, which had for a long time been represented by notes renewed from time to time, was represented by two notes under dates of September 14th and 24th, 1901, respectively, amounting in their principal-sums to $786.40.</p> <p>The plaintiff was the purchaser from said receiver, and under an order of court, of said note for $2,000, and of all claim the Becldey Company had against Freedman by reason of its said transactions with him, and is now the indorsee and holder of said note and the owner of said claim, neither of which have been paid.</p> <p>The defendants claimed that said $2,000 note was signed by them without consideration and as an accommodation to Freedman. The court did not so find.</p> <p>Freedman, and Weinick, one of the makers, have since the giving of the note been adjudicated bankrupts and received discharges in bankruptcy.</p> <p>The court rendered judgment in favor of Weinick, and in favor of the plaintiff against the other three makers to recover $891.69.</p>

<p>Appeal from the refusal of the Court of Probate for the district of Huntington to admit to probate a paper propounded as a copy of the last will of Zachariah Spencer of Huntington, deceased, taken to the Superior Court in Fair-field County and tried to the jury before Roraback, J.; verdict and judgment confirming the action of the probate court, and appeal by Elizabeth Spencer, widow of the decedent.</p>

Hopkins, deceased, taken to the Superior Court in Fairfield County, transferred by mutual consent to the Superior Court in Hartford County, and reserved by that court, Thayer, J., upon an agreed statement of facts, for the advice of this court. On May 18th, 1898, and October 11th of the same year, Mary Frances Hopkins duly executed her last will and testament, and codicil thereto, describing herself as a resident of Stamford, Connecticut.

Gilman, deceased, taken to and reserved by the Superior Court in Fairfield County, Robinson, J., upon an agreed statement of facts, for the advice of this court. On March 3d, 1901, George F. Gilman, a resident of Bridgeport and domiciled in Connecticut, died intestate. On March 19th, 1901, the appellant was duly appointed administrator by the Court of Probate for the district of Bridgeport.

Action to recover damages.to lands of a riparian owner caused at times by an unreasonable and excessive flowage and at other times by a diminished flow, and also for an injunction, brought to and tried by the Court of. Common Pleas in Fairfield County, Curtis, J.; judgment for the plaintiff for 1300 damages, and appeal by the defendant.

) reducing, pursuant to the mandate of this court, an assessment against the plaintiff for the cost of paving with asphalt a portion of a street in the defendant city, and confirming and establishing said assessment as so reduced.

Action by a mortgagee to recover the amount of a loss under a policy of fire insurance, brought to the Superior Court in Hartford County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the’ plaintiff for $849.82, and appeal by the defendant. One Woodruff' was the owner of a lot of land in New Hartford with a building standing thereon. These premises were subject to a mortgage to the plaintiff for $10,000.

Action to recover damages for personal injuries caused by the alleged negligence of tbe defendant, brought to and tried by the Superior Court in Hartford County, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff for $750, and appeal by the defendant.

<p>During an epidemic of smallpox the defendant city engaged the services of the plaintiff, who was in “ the hack business,” to carry smallpox patients to and from a hospital and house of detention, and directed him to keep his hack, when not in actual use for this purpose, at first under a shed near the house of detention, and afterwards upon the hospital premises where it was exposed to and injured by the weather. The trial court found that the plaintiff was under no contract obligation to continue to transport patients for the city after he had been directed to keep his hack at the hospital; that after proper disinfection he might have removed it at any time; that he was induced to continue the service because of the unusually high compensation he received from the city for such transportation; and that when the epidemic was over and the hack had been disinfected by the city, the plaintiff, although requested to remove it, failed to do so. Held that upon these facts, which the evidence warranted the trial court in finding, its conclusion that the city was not liable for detaining the hack, nor for injuries thereto caused by exposure to the weather, was amply justified.</p> <p>The plaintiff’s final bill for services, which was presented after the epidemic was over, contained no charge or claim for injury to the hack. Held that this was admissible as tending to prove that the plaintiff’s present claim for damages was an afterthought.</p> <p>Upon his cross-examination the plaintiff stated that after presenting his final bill for services to the city he sent a later one for injuries to the hack. Held that upon his further cross-examination it might be shown that what the plaintiff meant by the later bill was his request to the city to buy the hack, and a resolution for its purchase which he caused to be presented to the common council. The failure of a party to assert his claim at the natural and proper time is some evidence, although it may be slight, that the claim is unfounded.</p>

Action to recover damages for wrongfully cutting oak and chestnut trees on the land of the plaintiff, and for an injunction against any further cutting, brought to and tried by the Court of Common Pleas in Hartford County, Peck, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendant.

<p>By her will, executed July 10th, 1899, a testatrix gave $5,000 to an academy as a memorial to her deceased husband, to be used in the erection of a building for industrial school purposes. A codicil, made October 6th, 1899, revoked this provision and gave $5,000 to the executors in trust, to keep it properly invested until such time — “ which shall not be later than the' first day of January, 1901 ” — as the aforesaid industrial school “ now in process of establishment . . . shall be legally incorporated under the laws of Idaho, and until the trustees of said industrial school shall cause to be erected,” at an expense of at least $5,000, a building “ as a memorial to my late husband, from .plans which shall be approved by said trustees.” The codicil then provided that as soon as said school should be incorporated and become legally enabled to receive said legacy, “ and shall so erect said building, within said time so limited,” the entire legacy with its accumulations should be paid over to the trustees of the school; but “ in case the pro.visions of this bequest shall not have been complied with by January 1st, 1901, the entire legacy shall have become forfeited, and shall revert to and become a part of the residuary of my estate.” A second codicil, executed July 30th, 1901, which related, merely to matters of detail under the residuary clause, expressly affirmed the will and first codicil except as to those changes. The industrial school was incorporated in Idaho October 23d, 1899, and the testatrix" died May 14th, 1903. Her surviving executor failed to qualify'as a trustee of said bequest, and in December, 1904, the Court of Probate, upon the application of said industrial school, appointed a testamentary trustee, from which appointment the executor appealed. Held:—</p> <p>1. That inasmuch as the bequest in question was not plainly invalid or inoperative, the Court of Probate acted properly in appointing a trustee.</p> <p>2. That the Superior Court, upon appeal, had wider powers, and could declare authoritatively what was the proper construction and effect of the will.</p> <p>3. That in view of the general intent of the testatrix to benefit the school, which was manifest not only in the terms of the will and first codicil but also in her reaffirmation of these provisions long after January 1st, 1901, the erection of a building by that date was not essential to entitle the school to the bequest.</p> <p>Where the general intent of a testator is reasonably clear, it will rarely be def eated by an inaccuracy or inconsistency in the expression of a particular intent.</p>