Volume 80 — Connecticut Reports

Action to recover upon a New York decree granting periodical payments for future maintenance, brought to the Superior Court in New London County where a demurrer to the complaint was overruled (Shumway, J.j, and the cause was afterward tried to the court, Thayer, J.; facts found and judgment rendered for the plaintiff to recover f5,805, and appeal by the defendant.

Suit to.determine the construction of the will of Thomas Wigmore of Portland, deceased, brought to and reserved by the Superior Court in Middlesex County, Curtis, J., upon an agreed finding of facts, for the advice of this court.

Action by a trustee in insolvency for the conversion of goods of the insolvent, brought to the Court of Common Pleas in Hartford County and tried to the jury before Peak, J.; verdict and judgment for the plaintiff, from which each party appealed.

Action to recover for services and disbursements in providing a home and caring for the defendant’s testatrix, brought to and tried by the Superior Court in Hartford County, Q-ager, J.; facts found and judgment rendered for the .plaintiffs, and appeal by the defendant.

Action of replevin for a horse, brought to the Court of Common Pleas in Hartford County and tried to the jury before Coats, J. ; verdict and judgment for the defendant, and appeal by the plaintiff.

Action to recover rent, brought to and tried by the City Court of Hartford, Bullard, J.; facts.found and judgment rendered for the plaintiff, and appeal by the defendants.

Suit to determine the validity and construction of the will of Caleb Clapp of Hartford, deceased, brought to and reserved by the Superior Court in Hartford County, Case, J., upon a finding of facts, for the' advice of this court: When this case was reached for argument on May 8th, it appeared that no executor or other personal representative of the decedent was a party, whereupon the cause was remanded in order that an administrator de bonis non e. t. a. might be appointed…

<p>Applications for the appointment of appraisers to estimate damages arising from the taking of land for railway purposes, brought to and heard by the Son. Joel S. Reed, a judge of the Superior Court; a demurrer to each application was overruled, after which the facts were found and judgment rendered for the plaintiff, from which the defendants appealed.</p>

Suit to determine tlie validity and construction of the will of Julius Harmon of Suffield, deceased, brought to and reserved by the Superior Court in Hartford County, Oase, J., upon a finding of facts, for the advice of this court.

<p>The essence of actionable negligence is the infringement of the legal right of another, or, in other words, the violation of a duty imposed by law ih respect to another.</p> <p>Unless required by statute, a railroad company is under no definite and absolute legal obligation to cut down trees and bushes within the limits of its right of way which obstruct the vision of a traveler on the highway as he approaches a grade-crossing; but the existence of such obstructions is a circumstance to be taken into account by the trier in determining whether the railroad company used due care in running its trains at that point.</p>

Action on two coupon bonds for $1,000 each, brought to the Superior Court in Hartford County and tried to the jury before George W. Wheeler, J.; a verdict for the plaintiff was set aside by the court as against the evidence, and the plaintiff appealed. The defendant filed a bill of exceptions to certain of the instructions given to the jury. Exceptions sustained in part.

Action to recover for personal injuries caused by the alleged negligence of tbe defendant, brought to and heard in damages by the Superior Court in New Haven County, Gteorge W. Wheeler, J.; facts found and judgment rendered for the plaintiff for f2,294, and appeal by the defendant. Error and cause remanded for the assessment of nominal damages.

Application by a testamentary trustee for authority to sell and convey certain real estate for a stated sum, and to invest the proceeds, brought to and reserved by the Superior Court in Hartford County, George W. Wheeler, J., upon a finding of certain facts, for the advice of this court as to the. power of the trial court.

<p>A testator who died in 1886, after giving the life use of all his residuary estate, which was wholly in land, to his wife., and a subsequent life use of Whiteacre, a part of the residue, to his daughter, declared that upon the death of both wife and daughter he gave Whiteacre to his “son absolutely, or in case he should die before that time; to his legal heirs at law,” to be distributed among them as if it were his intestate estate. The balance of the residuary estate, upon the death of the wife, was given to the daughter “absolutely, and in case she should die before her mother’s decease,” to the daughter’s “heirs at law,” to be divided among them as if it were her intestate estate. The daughter died in 1907, testate, and the widow and son survive. In a suit to construe the will it was held:—</p> <p>1. That the gifts over, in case of nonsurvivorship, were not alternative but substitutionary; the word or in the devise to the son plainly having been used by the scrivener as equivalent to and, as shown by the employment of a like word for a similar purpose in the devise to the daughter.</p> <p>2. That these attempted gifts over, to the “heirs at law” of the son and daughter, were void under the settled construction of the statute against perpetuities which was in force when the testator died; and being void, such clauses were to be treated, in determining . the rights of the parties in interest, as if they had never been written.</p> <p>3. That the devises to the son and daughter having been made “absolutely,” and the conditional limitation or' executory devise having no effect in reducing or qualifying such gifts, each child took, on the testator’s death; a vested indefeasible estate in remainder in the property given to him or her.</p> <p>In construing wills the law favors vested estates.</p> <p>The law always prefers the first to the second taker in determining the subjects and extent of a testator’s bounty.</p> <p>The repeal of the statute of perpetuities in 1895 does not affect the construction of wills of persons then deceased, with respect to the estates which such wills purport to create.</p>

Action to recover a balance due for money loaned, brought to the Court of Common Pleas in Hartford County and tried to the jury before Goats, J. ; verdict and judgment for the plaintiff for $181, and appeal by the defendant. No error.

<p>Action of replevin for household furniture, brought to the Court of Common Pleas in Fairfield County and tried to the jury before Curtis, J.; verdict and judgment for the plaintiff, and appeal by the defendant. No error.</p>

<p>Action for the conversion of fourteen bonds alleged to have been left with the defendant as bailee, and for a recovery of the proceeds thereof received and unlawfully held by the defendant, brought to and reserved by the Superior Court in Fairfield County, Gager, Jupon a finding of facts, for the advice of this court.</p> <p>The complaint contains, in substance, the following allegations : 1. Prior to April 21st, 1903, the plaintiff owned fourteen bonds, of the denomination of $500 each and value of $7,000, which the plaintiff delivered to the defendant, and the defendant received the same as bailee of the plaintiff. 2. On April 21st, 1903, one Oliver T. Sherwood, without plaintiff’s knowledge or assent, took said bonds from defendant’s safe, and by pledge of said bonds as collateral security for his demand note of $6,000, obtained a check for that amount payable to his order, 3. Said Sherwood acted as cashier of the defendant and on behalf of the defendant in taking and pledging said bonds and m obtaining said check. 4. On April 21st said Sherwood endorsed said check and delivered it to defendant,- and defendant then endorsed said check and deposited if to its credit in the National Park Bank of New York, and said check was paid, and the avails thereof, $6,000, went to the use, credit and benefit of the defendant. 5. Upon default of payment of Sherwood’s said note, said bonds were sold by the pledgee thereof on May 21st. 6. Prior to May 25th the defendant bank became insolvent, and a receiver was duly appointed and qualified, of whom the plaintiff, on August 18th, made demand and claim for said bonds or their value in money, which claim was on October 5th .disallowed by the receiver.</p> <p>The defendant’s answer admitted the 6th allegation, denied the 1st, 3d, and 5th allegations, and denied tlie 2d and 4th allegations, coupling with it an averment that the deposit of said check to the credit of the defendant bank was without authority from or knowledge of said bank, was for said Sherwood’s own usé and benefit, and that said deposit was forthwith withdrawn by said Sherwood and used for his own benefit, and the defendant did not have the use or benefit of any part thereof.</p> <p>The finding shows, among other facts, the following": The defendant bank was and for many years had been á national banking association, with a capital of $100,000 and a surplus of $40,000. Oliver T. Sherwood became cashier of said bank in 1884, and continued as such until May 12th, 1903, when he absconded; he was subsequently-arrested and is now serving a sentence in the State prison. The duties of said Sherwood, as cashier, were those usually appertaining to that office: he received in the bank’s behalf all .commercial papers, notes, drafts, checks, or other papers payable to said bank or its order, endorsed the same for deposit with its name, and deposited them to its credit with the National Park Bank of New York. During the time he was cashier said Sherwood was,' by permission of the directors of the bank, the active managing officer, and actively directed the business and affairs of said bank. The board of directors had never authorized said cashier to exercise any powers or duties other than those usually incident to said office. For a period of about seven years prior to May, 1903, said Sherwood was engaged in continuously misappropriating the funds of said bank, and by false entries and accounts in its books and by falsifying the accounts of its depositors, he concealed such misappropriation from the knowledge of all the other officers of the bank. The funds of the bank so unlawfully misappropriated amounted, in May, 1903, to more than $150,000.</p> <p>Ón May 19th, 1903, Ellis S. Pepper was- appointed by the United States controller of the currency as receiver of said bank, and has ever since been engaged in winding up its affairs as an insolvent bank. The capital and surplus of the bank were found completely wiped out, and an assessment of eighty-three per cent, has' since been made against the stockholders.</p> <p>The fourteen bonds mentioned in the complaint were negotiable bonds and were owned by the plaintiff, and had been placed and kept by its agent, Francis P. S. Sherwood, who was also an employee of the bank, in the safe of the defendant for his own personal accommodation; the plaintiff’s said agent well knowing a standing rule in the bank, that the bank would not act as a custodian for the safekeeping of negotiable securities, and that any securities left in the bank’s safe were at the risk of the owner. Said Oliver T. Sherwood and one of the directors knew that said bonds were in said safe; the evidence did not disclose whether the other directors had knowledge or not.</p> <p>In respect to the 2d and 4th allegations the finding is as follows: On April 21st, 1903, said Oliver ■ T. Sherwood took from the safe of said bank said fourteen bonds and pledged them with N. W. Harris & Company, brokers of New York City, as collateral security for a loan of $6,000, evidenced by the promissory note of said Oliver T. Sherwood (a demand note for $6,000, reciting the deposit of the bonds as collateral security, and containing agreements as to the deposit, on demand, of additional security, and authorizing the sale of the bonds on default of payment or breach of agreement). Said Sherwood thereupon received from N. W. Harris & Company a check of which the following is a copy, viz:—</p> <p>“No. 2888.</p> <p>N. W. Harris & Company, Bankers,</p> <p>New York, April 21, 1903.</p> <p>Pay to the order of Oliver T. Sherwood, $6,000, six thousand dollars.</p> <p>To the National Bank of Commerce, ) Ne w York. > N. W. Harris & Co. ”</p> <p>Said check is endorsed on the back thereof as follows, viz:—</p> <p>“ Oliver T. Sherwood,</p> <p>Pay National Park Bank or order.</p> <p>Southport National Bank,</p> <p>Oliver T. Sherwood, Cashier. ”</p> <p>“ Received payment through New York Clearing House, April 21, 1903.</p> <p>The National Park Bank of New York. ”</p> <p>Said Sherwood, on April 21st, 1903, deposited said check in said National Park Bank, to the credit of said South-port National Bank. Said deposit was placed by said National Park Bank to the credit of said Southport National Bank, according to its ordinary course of business, and became subject to the call of said Southport National Bank. Said check was duly collected by said National Park Bank from the bank on which it was drawn, through the New York clearing house, in the usual manner, on the day upon which it was drawn. Said deposit in the National Park Bank of $6,000, the avails of said note to Harris & Company, was made without the knowledge or authority of any officer of the bank except its cashier. When the receiver was appointed, the defendant bank had to its credit in said National Park Bank more than $6,000, and the receiver has since his appointment used the same in the administration and settlement of the affairs of the bank. Said fourteen bonds were on May 25th, 1903, sold by said Harris & Company for the sum of $6,938, because of default in the payment of said note, and after applying the proceeds to the payment of said note, the balance remaining in their hands, amounting to $938, was paid to the plaintiff.</p> <p>In respect to the defendant’s averment that the proceeds of the bonds deposited to the defendant’s credit in the National Park Bank was so deposited without the defendant’s authority or knowledge, and were forthwith withdrawn by Sherwood and. used for his own benefit, and the bank did not have the use or benefit of any part thereof, the following additional facts are found. (Upon the trial the court admitted evidence, as offered by the defendant, as to the plan, purpose and intention of Sherwood in doing the acts which it is found he did, against the objection of the plaintiff, who duly excepted.) “ On the 30th of March, 1903, said Oliver T. Sherwood was administrator upon the intestate estate of Burr Perry, deceased, and as such administrator he had a deposit account with said bank. Prior to said March 30th, 1903, said Oliver T. Sherwood, as administrator, had been ordered and required by the Court of Probate to make a partial distribution of said estate to the heirs at law of said deceased, and in pursuance of said order it became necessary to pay to each of the five following-named persons the sum of $2,000 each, viz: Susan D. Perry, Sarah J. Perry, Loretta B. Perry, Alfred S. Perry, and Francis B. Perry. On said 30th day of March, 1903, said Oliver T. Sherwood drew a cashier’s check upon said bank to the order of each of said five named persons for $2,000, and indorsed upon the face of each of said checks the words, ‘certificate of deposit,’ and indorsed upon the back of each of said checks the following: ‘ This certificate hears interest at the rate of 4-J-^per annum and is payable upon ten days’ demand,’ and signed each of said indorsements, ‘ O. T. Sherwood, Cashier,’ and delivered the same to each of said five named persons. Said certificate of deposit in favor of said Alfred S. Perry was exchanged at said bank on April 8d for cashier’s check by said Oliver T. Sherwood for said sum, and collected through the Connecticut National Bank, April 4th, and on that date charged to the estate of Burr Perry, in the account of that estate with said bank. After payment of said check there was produced an overdraft of $131 against said account. On April 6th, 1903, said Sherwood received and deposited to the account of said estate the sum of $3,500.” Said certificate of deposit in favor of said Francis B. Perry was exchanged for a cashier’s check for the same amount, which check was collected through said Connecticut National Bank and charged to the account of Burr Perry on April 9th. This left a balance to the credit of said estate of $1,358.97. Said certificates of deposit in favor of Sarah J. Perry, Loretta B. Perry, and Susan D. Perry,'were each exchanged at said bank for three cashier’s checks payable to the order of said named persons, and collected through the Bridgeport National Bank, and were paid April 4th, 1903. Said three cashier’s checks were held in the cash assets of the bank until April 24th, 1903, and on that date were charged to the account of said estate of Burr Perry.</p> <p>After said Oliver T. Sherwood had obtained said check from said Harris & Company and the same had been deposited as aforesaid, he entered a credit in one of several personal accounts which he kept with said bank, under date of April 21st, of $6,000, and entered a memorandum in another of his personal accounts with said bank of three several items of $2,000, and carrying out therein a debit of $6,000, he then entered a credit item in the account of the estate of Burr Perry of $6,000, under date of April 23d, and a corresponding charge therein of $6,000, under date of April 24th. Said items of $6,000, so carried through his two personal accounts to the account of Burr Perry, were in fact the item of $6,000 deposited in said National Park Bank, the avails of the loan from Harris & Company. The purpose of utilizing said two personal accounts was to prevent the tracing of said avails, and make the record of said transaction difficult for any other person to trace or understand. The memorandum in his personal account in connection with a debit entry of $6,000, of three separate items of $2,000, was entered as a means of personal identification of the three items of $2,000 each, held in the cash, to which said sum of $6,000 was to be applied. Before drawing said five certificates of deposit for $10,000, as above set forth, said Sherwood cast about to see how he could meet this obligation. The semi-annual bank examination was drawing near, and he feared to reduce the cash assets of the bank, and he had not sufficient funds to the credit of the estate of Burr Perry with which to pay said amounts. There was a balance to the credit of the estate of Burr Perry nearly sufficient to pay one of said beneficiaries, and he anticipated said collection of $3,500 which would take care of another. As to the remaining three, he determined to borrow the $6,000 required upon the bonds of the town of Fairfield, which he had previously resorted to for dishonest purposes. It was with this purpose and intention that he drew the five checks hereinbefore referred to, and retained said three checks in the cash without charging the same to any account until he had opportunity to go to New York City with said bonds ; and he carried into effect and consummated the transaction in the precise way which was contemplated when said certificates of deposit were drawn.</p> <p>No other officer of said bank had any knowledge of any part of said transaction, nor of the entries in carrying it out.</p> <p>The finding states this conclusion: “ Except as herein-before set forth, and unless the facts found in law produce a different conclusion, the Southport National Bank had no beneficial interest in said deposit, and received no benefit therefrom.”</p>

Action for damages assessed by the defendant in favor of the plaintiff for land taken for public use for park purposes; brought to the Superior Court in Fairfield County. An answer was filed containing two defenses.

Action upon a probate bond, brought to the Superior Court in Fairfield County and tried to the jury before Ralph Wheeler, J.; verdict and judgment for the plaintiff for $6,205, and appeal by all the defendants other than Whitehouse.

Action to restrain the diversion of the head waters of Still River in Danbury above the plaintiff’s grist-mill, and to recover damages therefor, brought to and tried by the Superior Court in Fairfield County, Robinson, J., upon' the plaintiff’s demurrer to the defendant’s answer; the court overruled the demurrer and afterward rendered judgment {Reed, Jfor the defendant, from which the plaintiff appealed.

<p>In a written instrument styled an “underwriting certificate,” the defendant promised to pay $700 to W or order, on or before a certain date, in consideration of which he was to receive from the payee a first mortgage bond for $1,000, of a specified corporation, and $500 par value of its capital stock. Held:—</p> <p>1. That an indorsee could not recover the $700, without proving performance, or an' offer to perform, on his part.</p> <p>2. That the stock could be delivered only by means of a certificate for 50 shares; and therefore a tender to the defendant of a written assignment of 50 shares which formed part of a block of 1,500, all of which stood in W’s name on the books of the company, despite the plaintiff's attempt to secure its transfer, was not such a performance or offer to perform as entitled the plaintiff to recover.</p> <p>3. That the worthlessness of the stock would have been immaterial had a proper tender been made.</p>

Action to recover for services rendered and material furnished under building contracts, brought to and tried by the Superior Court in New Haven County, Q-eorge W Wheeler, J.; facts found and judgment rendered for the plaintiff for $1,986, and appeal by the defendant.

Complaint by a committee .of the bar of New Haven County charging the respondent, an attorney at law, with professional misconduct, and asking for his disbarment, brought to and tried by the Superior Court in New Haven County, Shumway, J.; facts found and judgment rendered permanently disbarring the respondent from practice before the courts of this State, from which he appealed. The respondent, Harold R. Durant, was an attorney at law having his office in Waterbury.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to and heard in damages by the Superior Court in New Haven County, Greorge W. Wheeler, J.; facts found and judgment rendered for nominal damages only, and appeal by the plaintiff. The complaint contains two counts. Upon the second the plaintiff did not claim to recover below.

Petition for a new trial in an action of slander, upon the ground of newly-discovered evidence, brought to and tried by the Superior Court in New Haven County, Thayer, J., upon a demurrer to the complaint; the court sustained the demurrer and rendered judgment for the defendant, from which the plaintiff appealed.

Action by a contractor to recover for alleged extra work and material furnished, brought to and tried by the Superior Court in New Haven County, Skumivay, ./., upon demurrers to the complaint; the court sustained the demurrers and rendered judgment for the defendants, and the plaintiffs appealed.

<p>The continuance of an actionable nuisance justifies a fresh suit from time to time for the recovery of the intermediate damages; and therefore a prior judgment is not a bar to a subsequent action for such damages.</p> <p>This rule is applicable to the discharge of the accumulated filth and sewage of a city into a stream in such quantities as to destroy the value of the property of a lower riparian proprietor and endanger the health of his employees.</p> <p>Private property cannot be put to such a public use except by legislative authority and upon payment of just compensation.</p> <p>A suit by a lower riparian owner to recover damages for an injury to his property caused by an unlawful pollution of the stream, is one for which an action on the case would have been the proper form of remedy at common law, rather than an action of trespass; and therefore, under General Statutes, § 1111, may be brought at any time within six years next after the right of action accrues.</p>

Action for an injunction and damages, brought to the Superior Court in New Haven County, where a demurrer to the complaint was overruled, and, after a hearing on issues of fact, judgment was rendered (Thayer, J.') for the defendant.

Action to recover damages for breach of a contract to use leased premises as a bakery, brought to the Superior Court in New Haven County where a demurrer to the complaint was overruled, one to the second defense of the answer was sustained (Thayer, In this court the appellees filed a plea in abatement to so much of the appeal as assigned error upon the part of the trial court in refusing to set aside the verdict, upon the ground that no appeal was taken from such refusal…

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to and heard in damages by the Superior Court in New Haven County, Greonje W. Wheeler, J.; facts found and judgment rendered for the plaintiff for $1,990, and appeal by the defendant.

Action to recover for services rendered to the defendant’s testatrix, brought to the Court of Common Pleas in New Haven County, where a demurrer to the first count was overruled, and the cause was afterward tried to the jury before Bennett, J.; verdict and judgment for the plaintiff for $611.52, and appeal by the defendant for alleged errors in overruling his demurrer and in denying his motion to set aside the verdict as against the evidence.

<p>Action to recover a death benefit, brought to the Superior Court in New Haven County and tried to the jury before RorabacJc, J.; verdict and judgment for the plaintiff, and appeal by the defendant.</p> <p>The defendant was incorporated by a special act of the legislature, February 24th, 1898. Andrew M. Dalton was an insurance' member of the defendant organization, and by the terms of this membership the defendant became obligated to pay, upon the member’s death (the conditions of membership having been complied with), a death benefit of $1,000. In March, 1898, in the manner provided in the constitution and laws of the defendant, the said Dalton designated Mary Dalton, the plaintiff, as his beneficiary, who thereupon became entitled, in pursuance of his contract with the defendant, to demand and receive the death benefit which might become payable upon his death. Andrew W. Dalton died August 30th, 1901, the plaintiff being then his designated beneficiary. This action was commenced August 14th, 1902, to recover a death benefit for $1,000 claimed to be payable to the plaintiff upon the death of Andrew W. Dalton. Upon the trial to the jury, the plaintiff claimed to have proved that she was the daughter of Andrew W. Dalton, and at the time of her designation as beneficiary was twenty-five years of age ; that at that time Andrew W. Dalton was a widower, living with his six children, all minors excepting the plaintiff; that the plaintiff lived at home as a member of her father’s family, kept house for him and managed the domestic affairs of the family; that her father remarried in 1899, and thereafter, down to the date of his death, the plaintiff continued to live in her father’s house, as her home, had no other home or place of residence, and remained unmarried; that whatever earnings she made were turned in to her father, who supported and maintained the household, and that she lived as one of the household and family, the same as her minor brothers and sisters, and that they all lived with and depended upon their father for support.</p> <p>The defendant claimed to have proved that the plaintiff lived in her father’s house, acting as his housekeeper from the death of her mother, when the plaintiff was seventeen years old, until 1897; that before she was eighteen, and while living with her father, she had spent three years in learning the dressmaking trade; that in addition to her housekeeping duties she carried on in her father’s house the dressmaking business during the years 1895,1896, and 1897; that in 1897 she took a position as clerk in a store for three years, at a salary of $6 a week, and during that time paid her father for her hoard and lodging $3 a week, keeping the balance of her earnings for her own benefit; that in April, 1901, the plaintiff left her father’s home and remained absent until August 15th, shortly before her father’s death; that during this absence she worked at her trade in Springfield and Northampton, earning 110 a week, with which money she paid her board and lodging and deposited a small sum in the savings-bank in her own name, and that the plaintiff supported herself and was not dependent upon her father for several years prior to his death.</p> <p>In view of this state of conflicting evidence and claims, the defendant, in writing, requested the court to charge the jury as follows : “ 1st. To be a legal beneficiary under the ‘ immediate family ’ clause in the charter of the Knights of Columbus, the beneficiary must live in and be a part of the deceased member’s household, and be under his legal control at the time of his death, must be dependent upon such member, and have a right to look to him for support and protection, and it is the corresponding duty of such member to give such support and protection to such beneficiary or beneficiaries. 2d. That if you find from the evidence that the plaintiff is the daughter of Andrew Dalton, and that she, being more than twenty-one years old, had left the home of her father, intending to make a living for herself, and using her own earnings for her own benefit, and that Dalton left a wife surviving him, and minor children, who had been and were a part of his household at the time of his death, and who were dependent upon him for support and protection at the time of such death, then I charge you that in accordance with the laws of the defendant corporation the plaintiff is not the legal beneficiary, or entitled to the death benefit sued for, even if you should find that a death benefit was due.”</p> <p>The court did not so charge. The reasons of appeal assign error in the denial of these requests, and also error “in charging the jury as follows,” reciting the whole charge of the court covering more than six pages of the printed record.</p>

<p>One object of the Practice Act was to enable parties to finally settle all their controversies in one civil action, so far as that can be accomplished conveniently.</p> <p>A plaintiff may undoubtedly withdraw from the consideration of the court the cause or causes of action alleged by him in his complaint; but since the adoption of the Practice Act he cannot, by an attempted withdrawal of “the action,” prevent the defendant from obtaining a trial upon a proper counterclaim or set-off previously filed; nor, on the other hand, is the court thereby deprived of its power or jurisdiction to restore “the entire case” to the docket, upon a motion to that effect made by the plaintiff after discovering the futility of his attempt to withdraw the whole subject-matter of the litigation.</p> <p>In an action to recover money loaned, the defendant filed a counterclaim for goods made and delivered to the plaintiff pursuant to a written contract, a copy of which formed part of the answer, alleging that a certain sum was due him on account thereof. By the terms of the contract the goods were to be made of the material furnished by the plaintiff at its cost price, and this was to be credited to the plaintiff and to remain his property until paid for. Held that the amount due the defendant for the goods made by him pursuant to the contract, depended upon the amount due the plaintiff for the cost price of material; and therefore a denial of the defendant’s allegation of the amount due him, put in issue the amount due the plaintiff for material furnished for making the goods.</p>

Action for specific performance of an agreement to sell and convey real estate, or, in lieu thereof, for damages, brought to and tried by the Superior Court in New Haven County, Gager, J.; facts found and judgment rendered for the plaintiffs for $500, the amount which they had paid to the defendant Edward T. Root, and appeal by them.

Action to charge a debt of a cestui que trust on the trust fund, brought to the Superior Court in Middlesex County and heard before Case, J. Judgment for plaintiffs.

<p>Action to recover damages for personal injuries alleged to have been caused by the defendants’ negligence, brought to the Superior Court in Hartford County and tried to the jury before Georye W. Wheeler, J. ; pursuant to the direction of the trial court the jury returned a verdict for the defendants, and from the judgment thereon the plaintiff appealed.</p> <p>The substituted complaint contains these allegations : On or about the 14th day of January, 1905, the plaintiff, a minor of the age of fourteen years, was employed by the defendants, who were engaged in growing, preparing and marketing tobacco in the town of Granby, in said Hartford county. On said day, the defendants sent their driver, one Charles Rinski, in charge of a certain sleigh to go from their warehouse in the town of Granby to the village of Tariffville in order to convey the plaintiff and other of their employees from said village of Tariffville to the said warehouse. The defendants placed in charge of said sleigh one Charles Rinski, as their agent and the driver thereof. On said day the defendants, by their agent, the said Rinski, offered and undertook to convey the plaintiff in said sleigh from said Tariffville to said warehouse, and the plaintiff accepted said offer and entered said conveyance. Said Rinski, as the agent of the defendants, then and there negligently, carelessly and improperly overloaded said conveyance by accepting more passengers than could ride with safety thereon, and allowing the same to remain thereon during the drive. Said driver carelessly, negligently and improperly drove said conveyance, containing the plaintiff with other employees of the defendants, along the public highway in said Tariffville in such a manner that the said sleigh violently collided with the bridge across the Farmington River, near the said village, and in said collision crushed the left leg of the plaintiff rendering it necessary to amputate it. Said injury to the plaintiff was caused by said negligent overloading as aforesaid, and by said negligent, careless and improper driving of said conveyance, all of which was done by the defendants through their agent and driver, the said Rinski. No act or conduct of the plaintiff contributed to cause the injury.</p> <p>Upon the trial the court instructed the jury, in substance and effect, that the plaintiff, whether he was there by a right arising from his contract of employment, or as a privilege of his employment, or by license, permission or invitation of the defendants, was, while on the sleigh, a servant of the defendants and a fellow-servant of Rinski; that although the jury should find that the injury complained of was caused by Rinski’s negligence, and without any contributory negligence of the plaintiff, the latter could not recover, because Rinski’s negligence was one of the risks assumed by the plaintiff when he entered the defendants’ employment; and that upon the evidence presented there was no verdict possible in law for the plaintiff. The "court thereupon directed the jury to render a verdict for the defendants.</p>

Action by a real-estate broker to recover his commission for effecting a sale, brought to the Superior Court in Hartford County and tried to the jury before Greorge W Wheeler, J.; verdict and judgment for the plaintiff for $1,415 damages, and appeal by the defendants. The jury reported a disagreement after they had considered the case for between two and three hours.

highway in the city of Hartford, taken to the Son. John Goats, judge of the Court of Common Pleas for Hartford, County, and referred to a committee who found and reported the facts; the report was accepted, a remonstrance thereto overruled, and judgment rendered confirming the assessment made by the board of street commissioners, from which the appellants appealed.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Hartford County and tried to the jury before George W. Wheeler, J. ; verdict and judgment, for the plaintiff for $7,294 damages, and appeal by the defendant. ■ The defendant is a corporation located- in East Glastonbury, engaged in the manufacture of woolen goods.

Action for damages, reported in 79 Conn. 458. After the remand to the Superior Court, the amendment previously disallowed was allowed, and the cause tried on issues of fact to the jury before George W. Wheeler, J.; verdict and judgment for plaintiff.

<p>An oral agreement to lease premises for a term of years is within the statute of frauds. No action can be maintained upon it, nor can it be used by a defendant to defeat a demand otherwise legal and just.</p> <p>An alleged written memorandum of such an agreement which makes no reference whatever to the length of the term, is insufficient to satisfy the requirements of the statute of frauds; nor can such omission be supplied by parol evidence.</p>

<p>Action by the administratrix of the estate of John B. Smith to recover damages for negligence resulting in his death, brought to the Superior Court in Hartford County, defaulted, and heard in damages before Q-ager, J., who assessed them at $4,000.</p>

Knapp, taken by a remonstrating taxpayer to, and tried by, the Superior Court in New Haven County, Gager, J.; facts found and judgment rendered confirming the action of said commissioners, and appeal by the taxpayer.

Action against the principal and surety to recover the amount of a liquor-license bond, brought to ¡the Court of Common Pleas in New Haven County where a demurrer .to the answer was overruled (Bennett, ./.) and the cause was afterward tried to the court, Wolfe, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged error in the rulings of the trial court.

Action in the nature of trespass quare clausum fregit, brought to and tried by the Superior Court in New Haven County, Oase, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants. In 1904 the plaintiff enclosed a-large tract of uncultivated woodland, about one mile square, situated partly in New Haven and partly in the towns of Woodbridge and Orange.

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 Court of Common Pleas in New Haven County, Wolfe, J. ; facts found and judgment rendered for the plaintiff for $275, and appeal by the defendant.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Fairfield County and tried to the jury before Ralph Wheeler, •/.; verdict and judgment for the plaintiff for $800, and appeal by the defendant.

Action to recover damages for the conversion of a motor-car, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J!, upon a demurrer to the reply; the court sustained the demurrer and rendered judgment for the defendant, from which the plaintiff appealed.

Action on contract, brought before a justice of the peace, who gave judgment for the plaintiff. On appeal to the Court of Common Pleas for Fairfield County, a counterclaim was filed, and a demurrer to it overruled (Curtis, J.'). Final judgment was afterward rendered (Scott, J.~) for the defendant, but on the counterclaim for the plaintiff.

<p>Action for breach of promise of marriage, brought to the Superior Court for Fairfield County and tried to the jury before Graqer, J.; verdict and judgment for plaintiff for |1,000. No error.</p>

Petition for a new trial, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; facts found and judgment rendered denying the petition, and appeal by the petitioner. The case for which a new trial was sought was that of Wood v. Holah, reported in 79 Conn. 215, 64 Atl. 220. Judgment for the defendant was rendered therein.

<p>Information for furnishing a “ ticker ” for use in and for the maintenance of a pool-room, brought to and reserved* by the Superior Court in Fairfield County, llorabaclc, •/., upon a demurrer to the information, for the advice of this court.</p> <p>The information charges “that on the 13th day of December, 1905, at Bridgeport, in said county, James E. Scott, then of said Bridgeport, with force and arms, well knowing that a certain building, room, office and place situated in said Bridgeport, and known as No. 37 Bank Street, was a pool-room, and that on said day one James E. Burnham did keep, manage, maintain and occupy said building, room, office and place with apparatus, books, boards, and other devices, the exact nature and description of which is to the Attorney unknown, for the purpose of making, recording and registering certain bets and wagers and of buying and selling pools upon the result of certain trials and contests of skill and speed of certain horses, the the place of such trials and contests not being known to said Attorney, did furnish to said James E. Burnham for use in and to maintain said pool-room and building, room, office and place, a certain apparatus known as a ticker, together with telegraphic service, automatically printing on a tape, connected therewith, giving the names of certain horses, jockeys, weights, odds and the results of said trials and contests, which said telegraphic service was convenient for, and was used in said building, room, office and place, for the purpose of enabling said James E. Burnham to conduct, keep and maintain the same, he the said James E. Scott well knowing the purposes for which said ticker and said telegraphic service was used; and so said Attorney for the State says that the said James E. Scott in manner aforesaid, with force and arms, did on said day at said Bridgeport, knowingly assist and aid in the keeping, conducting, and maintaining of said building, room, office and place, for the purposes aforesaid.”</p>

Application to the Supreme Court of Errors for a writ of mandamus requiring the Superior Court in New Haven County, Gager, J., to enter forthwith a final judgment upon its denial of the applicant’s motion for a disclosure in a suit pending in said court. To this application the respondent demurred.

<p>Information for buying and selling junk without a license therefor, brought to the District Court of Waterbury and tried to the jury before Cowell, J., after a demurrer to the information had been overruled pro forma ; verdict and judgment of guilty, and appeal by the accused.</p>

Suit to settle and determine the title to real estate and to obtain the annulment or cancellation of a lease, brought to the Superior Court in New Haven County where a demurrer to the complaint was overruled, Oase, J., and the cause was afterward tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action in the nature of trespass qu. cl.fr., brought to and tried by the Superior Court in New Haven County, George W Wheeler, J.; facts found and judgment rendered for the plaintiff, from which the defendant appealed.

Action under General Statutes, § 4053, to quiet and settle the title to two tracts of land in the town of Milford, brought to the Superior Court in New Haven County where a demurrer to the complaint was sustained (Oase, J.), and upon an amended complaint the cause was afterward tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the defendants, from which the plaintiff appealed.

Information for selling liquor on Sunday, brought to the Criminal Court of Common Pleas in New Haven County and tried to the jury before Wolfe, J.; verdict and judgment of guilty, and appeal by the accused. The appeal assigns error in the refusal of the court to charge as requested, in the charge as given, and in rulings upon evidence.

Action to recover damages for the loss of the plaintiff’s horse and injury to his harness and carriage, alleged to have been caused by the negligent and unlawful acts of the defendants, brought to the Court of Common Pleas in New Haven County and tried to the jury before Wolfe, J.; verdict and judgment for the plaintiff for $350, and appeal by the defendant Cook.

, confirming the action of the county commissioners in refusing the appellant’s application for the transfer of a liquor license. On December 24th, 1906, the appellant, Luigi D’Amato, applied to the county commissioners for New Haven county for a license to sell liquors at 246 Wooster Street in the city of New Haven.

Action under § 4053 of the General Statutes, to quiet and settle the title to real estate, and for other incidental relief,- brought to the Superior Court in New Haven County, where demurrers to the complaint and to a cross-complaint- filed by certain of the defendants were sustained and judgment rendered (Robinson, •/.) in favor of the demurrants, from which the plaintiff and the other defendants appealed.

Action for the conversion of money alleged to have been paid to the defendant for the plaintiff’s use, brought; to the District Court of Waterbury and tried to the jury before Cowell, J. ; verdict and judgment for the defendant, and appeal by the plaintiff.

Action of scire facias against a garnishee, brought to the Court pf Common Pleas in Litchfield County and tried to the jury before Tyner, J.; verdict and judgment for the plaintiff, and appeals by the defendant. . In this court the appellee, filed a plea in abatement to the appeals. Plea sustained as to the so-called appeal from denial of motion to set aside the verdict, and overruled as to the appeal from final judgment.

Action to recover damages for an injury to the plaintiff’s horse and carriage, alleged to have been caused by the negligence of the defendant’s servant, brought to the Court of Common Pleas in Litchfield County and tried to the jury before Welch, J.; verdict and judgment for the plaintiff, and appeal by the defendant.

Action of replevin for three horses, brought to and tried by the Superior Court in Litchfield County, Curtis, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs.

Action to foreclose a mechanic’s lien, brought to and tried by the Superior Court in Litchfield County, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendants.

~). The decree was one allowing the administration account of Carrie S. Reed, executrix of the will of George W. M. Reed, late of Tariffville, deceased, and refusing to remove her, or to require her to file a bond, or to appoint a trustee of the residuary estate. The Superior Court set aside the decree in part and re-stated the account.

Action for an injunction, an accounting, an order for a bond, and for damages; brought to and tried by the Superior Court in Hartford County, Curtis, J.; injunction granted. This action was tried in the Superior Court at the same time and in connection with the preceding case.

Action to recover the amount of two promissory notes, brought to and tried by the Superior Court in Hartford County, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action in the nature of interpleader to determine the title to a savings-bank deposit, brought to the Superior Court in Middlesex County where a demurrer to the complaint and prayers for relief was overruled (.Ralph Wheeler, J.~) and the cause was afterward tried to the court, Gager, J.; facts found and judgment rendered for the plaintiff, and appeal by the executor of the defendant Sarah A. Clark.

Action in the nature of interpleader to determine the rights of the respective parties in and to a judgment-debt due from the New York, New Haven and Hartford Railroad Company to the defendant Carey, and claimed by the plaintiff and several other fire insurance companies, also for an injunction, brought to the Superior Court in Fairfield County where, upon a cross-complaint filed by the railroad company, which was found to be true, an interlocutory order was rendered (Bor…

Action to recover damages for running over and killing the plaintiff’s licensed dog, brought to the City Court of Danbury and tried to the jury before Booth, J.; verdict and judgment for the plaintiff for $10, and appeal by him from the refusal of the trial court to award him more than $10 costs.

Suit by a trustee under a voluntary settlement, brought to the Superior Court in New Haven County for an adjudication as to bis duties under the instruments of settlement and the will of the settlor, which purported to be an exercise of a power of appointment; heard before Gayer, J., who rendered judgment that the power was well executed, from which the heirs at law appealed.

Shit to obtain a conveyance of real estate and an accounting of the rents and profits thereof, brought to and tried by the Superior Court in Fairfield County, Reed, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiffs. The essential allegations of the complaint are, in -substance, as follows :— 1.

Action to recover rent, brought to and tried by the Court of Common Pleas in New Haven County, Bennett, J.; facts found and judgment rendered for the plaintiff for $420, and appeal by the defendant. The plaintiff sought to recover the agreed rent of certain premises for the year beginning October 1st, 1899. He set up a parol lease for that term, and alleged that the defendant entered into possession under it, continued in possession through the term, and had paid no rent.

Action by a testamentary trustee to recover the balance claimed to be due from his deposed predecessor in office, brought to the Superior Court in Fairfield County where successive demurrers to the original and amended answers were sustained (Roraback and Gager, Js.), and the cause was afterward tried to the court, Reed, J.; facts found and judgment rendered for the plaintiff for #11,487, and appeal by the defendant.

<p>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 Windham County, Boraback, J. ; facts found and judgment rendered for the plaintiff for $5,000, and appeal by the defendant.</p>

<p>It is competent for the General Assembly to establish municipalities and authorize them to exercise, within their respective territorial limits, certain governmental powers, including those necessary to the maintenance of local order and the protection of the property, health and morals of their inhabitants.</p> <p>Ordinances enacted under such authority must be “reasonable,” that is, must tend in some degree to accomplish the object for which alone the authority was granted; they must not violate any controlling general statute on the same subject, nor any constitutional guaranty of the rights of person and property; and their provisions must not be so vague as to render them void for uncertainty.</p> <p>The common council of the city of New Britain, which was authorized by charter to pass ordinances, among other things, for the licensing and regulation of peddlers and hawkers, declared that no person should vend or peddle any fruits, groceries, or other goods, wares or merchandise, on the public streets of the city, or solicit sales thereof from house to house, unless licensed by the common council or its committee; and that the fee for fruit and vegetable peddlers should be $2 per month or fraction thereof. Upon a prosecution for a violation of this ordinance it was held:—</p> <p>1. That the trade of hawkers and peddlers was one which had long been recognized as calling for special legislative control and restriction, especially when carried on in the streets of a populous city.</p> <p>2. That the power to license and regulate necessarily implied, if indeed it did not clearly express, the power to prescribe the amount of the license fee and to enforce its payment.</p> <p>3. That an exaction of $2 a month, if it could be regarded as an exercise of the power of taxation at all, was only such as was incidental and subordinate to the main purpose of regulation, and, as such, was within the power conferred by the charter.</p> <p>4. That the ordinance, being authorized and constitutional, the discretion exercised by the common council in prescribing the license fee could not be reviewed by this court.</p> <p>The case of State v. Glavin, 67 Conn. 29, distinguished.</p>

Application in the nature of an appeal from the refusal of the hoard of relief of the town of Enfield to reduce the valuation placed by the assessors on the plaintiff’s property for purposes of taxation, taken to and tried by the Superior Court in Hartford County, 6y«se, J.; facts found and judgment rendered reducing the assessors’ valuation by nearly $88,000, and appeal by the defendant.

Action to recover for stenographer’s services, brought to the Court of Common Pleas in Hartford County and tried to the jury before Coats, J.; verdict and judgment for defendant.

Action to restrain the obstruction of a passway, and for damages, brought to and tried by the Court of Common Pleas in New Haven County, Wolfe, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

<p>Writ or error to reverse a judgment of the City-Court of Waterbury, Peasley, J., in an action of summary process.</p>

<p>General Statutes, §§ 1380, 1381, requiring articles purporting to be made of gold, in whole or in part, to be truthfully stamped or marked, and declaring it to be a misdemeanor to sell such articles if falsely marked, do not apply to sales made in another State; and therefore foreign sales of the above described articles may be a valid consideration for the acceptance in this State of drafts drawn by the foreign vendor upon the Connecticut vendee for the payment of their purchase price.</p> <p>A manufacturing company in Iowa, through its solicitor in Connecticut, obtained an order from the defendant for various kinds of jewelry to be delivered free on board transportation companies in Iowa, and to be paid for by acceptances of drafts to be drawn by the vendor, and the sale was consummated accordingly. Held that upon these facts the sale was made in Iowa.</p> <p>In an action upon these acceptances, the defendant’s husband testified that many suits of this kind were pending all over the country, his information being derived from a paper published by an association of druggists, of which he was a member. It did not appear that the plaintiff, an alleged bona fide indorsee of the drafts, or the vendor, was a party to these suits, or that the plaintiff had knowledge of them, nor did it appear when they were commenced. Held:—</p> <p>1. That the testimony was clearly hearsay and erroneously admitted.</p> <p>2. That after it appeared on cross-examination that the witness’ information of these other suits was acquired subsequent to the commencement of the present action, the plaintiff’s motion to strike out the evidence should have been granted.</p> <p>It is the duty of the trial judge to pass upon the admissibility of testimony, and not leave it to be decided by the jury; for it is only by his decision that counsel can know whether the evidence is admitted or rejected and have the benefit of their exceptions accordingly.</p>

<p>Appeal from a decree of the Court of Probate for the district of Norwalk approving and admitting to probate a certain instrument in writing as the last will and testament of Sarah J. Lockwood of New Canaan, deceased, taken to the Superior Court in Fairfield County and tried to the jury before Ralph Wheeler, J. ; verdict and judgment for the contestants setting aside certain portions of the will, and appeal by the proponents.</p> <p>The reasons of appeal to this court allege error (1) in the charge of the trial court to the jury; (2) in rulings upon evidence; and (3) in denying a motion for a new trial on the ground of a verdict against evidence.</p>

<p>An adjoining.proprietor who, with the assent of the municipal authorities, improves the highway in front of his premises by laying down a sidewalk and curb thereon at his own expense, without changing the traveled portion of the road-bed or impairing the facilities for vehicular-traffic, is not guilty of an encroachment upon the public easement; and even if he could be regarded as a technical wrong-doer, the abutting proprietor on the opposite side of the street would have no cause of action, unless his property was specially injured by such alterations. *</p> <p>The preference of the opposite landowner for an outlook on a rough 'natural bank covered with boulders and bushes, to a view of an artificial but ornamental grassy slope and sidewalk, and for. the quiet and seclusion of a country road, to the dust, dirt and annoyance incident to the use of a street in a populous neighborhood, are not rights attached to the ownership of his property adjoining the highway.</p> <p>Under our practice, the question of whether a witness has shown himself competent to express an opinion upon a subject is largely a matter of judicial discretion, the exercise of which, unless abused, will not be reviewed on appeal.</p>

Action for breach of promise of mariiage, brought to the Superior Court in Hartford County and tried to the jury before George W. Wheeler, J. ; verdict and judgment for plaintiff.

<p>Appeal from a decree of the Court of Probate for the district of Stamford, refusing to allow a testamentary trustee to credit its account with a sinking fund for retiring premiums on bonds purchased by the testator, brought to and reserved by the Superior Court in Fairfield County, Rorabaek, J., upon an agreed statement of facts, for the advice of this court.</p>

<p>Information for rape and also for an indecent assault, brought to the Superior Court in New Haven County and tried to the jury before Robinson, J.; verdict and judgment of guilty upon the count charging an indecent assault, and appeal by the accused.</p>

<p>Action to recover for a crop of tobacco alleged to have been sold to all the defendants,. brought to the Superior Court in Litchfield County where successive demurrers to the substitute and amended complaint, filed by all the defendants except Case, were sustained (Reed and Curtis, Js.), and judgment rendered for the defendants, from which plaintiff appealed.</p> <p>This appeal is taken simply for error apparent on the face of the record. The portions of the judgment record claimed as showing error, are, in substance, as follows: The action was returnable to the Superior Court on the first Tuesday of September, 1906. On October 2d, 1906, the plaintiff filed a substitute complaint as follows: “1. 'On October 4th, 1905, the defendants, Kutinsky, Adler & Company and Luther M. Case, formed a partnership, under a written agreement, to buy, sell, and deal in, tobacco of the Massachusetts and Connecticut crops of 1905, of which agreement a copy is herewith filed, marked ‘ Exhibit A.’ 2. On February 12th, 1906, the plaintiff sold and delivered to the defendant Case, for and on account of said partnership, a large quantity of tobacco of the Massachusetts crop of 1905, viz., more then ten (10) tons, at the agreed price of eighteen (18) cents per pound. 8. The defendants thereby became indebted to the plaintiff in the sum of $4,000. 4. Said sum has not been paid. The plaintiff claims $5,000 damages.”</p> <p>This complaint was demurred to as defective in substance, because the liability of the defendants was based on the terms of Exhibit A, and it appeared by those terms that the defendants did not form a partnership, as alleged in the complaint; and on March 15th, 1907, the demurrer was sustained on that ground.</p> <p>On May 3d, 1907, the plaintiff filed an amended complaint as follows: “ 1. On October 4th, 1905, the defendants entered into a written agreement to buy, sell, and deal in tobacco of the Massachusetts and Connecticut crops of 1905, of which agreement a copy is herewith filed, marked ‘ Exhibit A.’ 2. On , 1906, the plaintiff sold and delivered to the defendants a large quantity of tobacco of the Massachusetts crop of 1905, viz., . 3. The defendants thereby became indebted to the plaintiff in the sum of $5,500. 4. Said sum has not been paid. The plaintiff claims $6,000 damages.”</p> <p>(Exhibit A is the same document as that mentioned in the former complaint.)</p> <p>On June 28th, 1907, the court, against the objections of the defendants, allowed this amendment. On November 29th, 1907, the defendants Kutinsky, Adler & Company demurred to this amended complaint for the following reasons in substance: (1) That the alleged liability of the defendants was based upon the terms of Exhibit A ; (2) that it appeared by said terms that the agreement, Exhibit A, did not create a partnership between the defendants in the purchase of tobacco from third persons; (8) that the allegations of the complaint did not state with necessary certainty the cause of action sought to be alleged. On February 11th, 1908, the court sustained this demurrer to the amended complaint.</p> <p>On February 18th, 1908, upon motion of the defendants, and also by the stipulation of the parties, the court rendered judgment for the defendants to recover their costs, and on the same day the plaintiff perfected this appeal. The errors assigned as appearing on the face of the judgment record, are : (1) Error in sustaining the demurrer to the amended complaint; (2) in sustaining the demurrer to the substitute complaint.</p>

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendants, brought to the Superior Court in Windham County and tried to the jury before Reed, J.; verdict and judgment for the defendants, and appeal by the plaintiffs.

Suit by a minority stockholder for the dissolution of the defendant corporation, on the ground of alleged fraud, collusion, and gross mismanagement, in the conduct and control of its business by the two other stockholders, who were its salaried officers, brought to and tried by the Superior Court in Hartford County, Ouse, J. ; facts found and judgment rendered for the defendants, and appeal by the plaintiff.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to and heard in damages by the Superior Court in Hartford County, Ralph Wheeler, J.; facts found and judgment rendered for nominal damages only, and appeal by the plaintiffs.

Action by a trustee in bankruptcy to recover moneys alleged to have been wrongfully paid by the bankrupt to the defendant, brought to the Superior Court in New Haven County and tried to the jury before Roraback, J.; verdict and judgment for the plaintiff, and appeal by the defendant.

Suit to enjoin the obstruction of a passway and also for damages, brought to the Superior Court in Hartford County and reserved by that court, Case, J., upon an agreed statement of facts, for the advice of this court. This statement not being complete, the cause was continued until the January term, 1908, when a stipulation was filed that if the obstruction was unlawful, judgment might be rendered by the Superior Court for $1 damages and a permanent injunction granted.

<p>General Statutes, § 1369, prohibits “any secular business or labor, except works of necessity or mercy,” on Sunday. Held:—</p> <p>1. .That the sale on Sunday of tickets to i “moving picture show” advertised to be given that evening in an opera house, was not a work of “ necessity or mercy.”</p> <p>2. That the defendant, certainly, could not complain of an instruction to the jury which virtually left it to them to determine whether ' the sale in question was such an act of secular business or labor as actually disturbed the public peace and quiet, or annoyed, interrupted or disturbed any citizen in the proper observance of Sunday, inasmuch as the charge in that particular was in substantial ’ • compliance with his own request.</p> <p>The defendant also requested the court to instruct the jury that the primary purpose of the statute was the protection of servants and the prohibition of servile labor on Sunday. Held that there was no ground for imposing so narrow a limitation upon the words of the statute.</p>

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, Oase, J.; facts found and judgment rendered for nominal damages only, from which the plaintiff appealed. The Hartford Paving and Construction Company was the contractor for the erection of a bridge, and engaged in its erection.

<p>Action in the nature of interpleader, brought to the Court of Common Pleas in New Haven County and heard on demurrer before Bennett, J.; demurrer sustained and judgment rendered for the defendants, from which the plaintiff appealed.</p>

Action to enforce the delivery of shares of capital stock, and to recover damages for breach of contract, brought to and tried by the Superior Court in New Haven County, Gager, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs.

Action of interpleader to determine the rights of the respective defendants in and to money held by the plaintiff as clerk of the Superior Court, brought to and tried by the Superior Court in Fairfield County, Reed, J.; facts found and judgment rendered in favor of the Espencheid Hat Company, one of the defendants, and appeal by John C. Wilson, another defendant.

Writ oe Error to reverse a judgment of a justice of the peace in an action of summary process, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; judgment for the defendant, and appeal by the plaintiff.

Action in the nature of debt on judgment to recover the amount of alimony awarded the plaintiff upon her divorce from the defendant’s intestate, brought to and tried by the Superior Court in New Haven County, Gager, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action upon the common counts and a special count to recover a balance claimed to be due upon a building contract, and also for extra work and material, brought to and tried by the Court of Common Pleas in New Haven County, Tyner, J.; facts found and judgment rendered for the plaintiff upon each count, from which the defendants appealed.

Information for threatening and intimidating certain employees, with intent to compel them, against their will, to refrain from working for their employer, brought to the Criminal Court of Common Pleas in New Haven County and tried to the jury before Bennett, ./.; verdict and judgment of guilty, and appeal by the accused.

<p>An inventory of the estate of a deceased person filed in 1900, when the statute (Rev. 1888, § 578) did not require an appraisal of choses in action, contained this item: “A certain claim against the estate of John G. Spicer for certain bank book deposits, value as yet undetermined.” In 1904 the administrator collected, on account of the claim thus described, $16,370.51, and in his administration account charged himself with this sum as follows: “ 1904—■ Feb. 21. To cash from Estate of John G. Spicer, representing accrued interest on Savings Bank Books, $16,370.51.” Held that the inventory and account, taken together, sufficiently exhibited the condition of the estate, and that it was not, as matter of law, necessary to make it appear whether the amount so charged represented a lump sum accepted in settlement, or was made up of a number of specific items.</p> <p>Whether an additional inventory and appraisal should have been filed on the collection of the claim, in view of General Statutes, § 323, quosre.</p>

Joel H. Reed, a judge of the Superior Court, upon the city’s motion to dismiss the appeal; judgment rendered in favor of the Railroad Company, from which the city appealed.

<p>Action to restrain the enforcement of a judgment of a justice of the peace in favor of the defendant, and to secure its annulment, brought to the Court of Common Pleas in Litchfield County and tried to the court, Welch, J., on demurrer to the complaint; the'■court overruled the demurrer and rendered judgment for the plan tiff, from which the defendant appealed.</p>

Suit to condemn or appropriate the water-works of the defendant company pursuant to special legislative authority, brought to and reserved by the Superior Court in Hartford County, Case, upon a… Held: it being the first of such meetings. A temporary organization was then effected, by the choice of a chairman and clerk, and a .list of subscribers presented. No other business appears to have been transacted.

Action to recover for the support of certain paupers alleged to belong to the defendant town, brought to and tried by the Court of Common Pleas in Hartford County, Coats, J., upon an agreed statement of facts; judgment for the plaintiff, and appeal by the defendant.

Action to recover damages for injuries to the plaintiffs’ building caused by the set-back of sewage from a street sewer, brought to the Court of Common Pleas in Hartford County and tried to the jury before Coats, J. ; verdict and judgment for the plaintiffs, and appeal by the defendant.

<p>Application for an attachment for contempt of court in publishing newspaper articles tending to unduly interfere with the administration of justice and to prejudice the public and the jury as to the merits of a cause just before and during its trial, brought to the Superior Court in Fair-field County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered against the accused, from which he appealed.</p>

<p>Suit to determine the validity and construction of the will of Joseph Plant of Norwich, deceased, brought to and reserved by the Superior Court in New London County, Rorabaclc, J., upon the facts stated in the complaint and answers, for the advice of this court.</p> <p>Joseph Plaut, late of Norwich, died January , 1905, leaving an estate consisting of both real and personal property and the will here for construction', which has been duly probated. The body of the will reads as follows:—</p> <p>“ First. I direct that all my just debts and funeral expenses shall be paid by my executrix hereinafter named.</p> <p>“ Second. I give, devise and bequeath all my property, both real and personal, of every kind and description, to my beloved children, Rosa Plaut, Sarah, Hattie and Ger-tie, my daughters, and Louis, Ralph, Eddie and Seymour Plaut, my sons, and to their heirs forever, but I desire and direct that my said children shall keep my real estate intact and entire if they can do so, and that the income of all my property, both real and personal, shall be paid to my said daughters above mentioned excepting those who may be married at and after my death until they all are married, or in the event of the aforesaid daughters not marrying, until such time as they shall find in [it] convenient without loss to themselves my said daughters, to divide the income of all said property equally among all my children named herein sons, as well as daughters. My real estate is thus described: . . . Should my children aforesaid be unable to keep said real estate intact and undivided, then it shall be sold and the income of the proceeds thereof shall be divided among my said daughters in the manner I have described herein, to be afterwards divided in the manner I have directed, should my daughters not marry.</p> <p>“ Third. I hereby appoint my beloved daughter, Rosa Plaut to be the executrix of this my last will and testament and I ask that the Court of Probate require no bonds of her, and I recommend to her to seek the advice when in need of counsel of my beloved nephew Fordy Plaut who will advise her with good counsel.”</p> <p>Rosa Plaut qualified as executrix, and settled the estate, her final account being filed July 30th, 1906. September 25th, 1906, she was appointed trustee under the will, qualified, and is now acting as such trustee. There came into her hands as such trustee, from herself as executrix, real estate appraised at $15,197.33, and personal estate, consisting of securities and deposits ' in bank, appraised at $21,645.23, making a total of $36,842.56, and such estate is now in her hands, as is also the income received therefrom. The annual income amounts to about $2,500.</p> <p>The eight persons named in the second paragraph of the will as the children of the testator are his only children, and all are now alive, of full age, and parties hereto.</p> <p>The following questions are presented: “ 1st. Whether a valid trust is created by the terms of paragraph second of said will, or whether there is an absolute gift of all the testator’s property after the payment of debts and funeral expenses and expenses of settlement of his estate, equally to his eight children. 2nd. If a valid trust is created by said will, when, to whom and in what amounts should the income from the principal thereof be paid.- 3rd. If a valid trust is created by said will, at what time does such trust terminate and to whom should the principal of said trust be distributed at its termination. 4th. If a valid trust is created by said will, should any of the income therefrom be paid to the testator’s sons so long as any of his daughters are unmarried, and if so, when, and how much. 5th. If a valid trust is created by said will, should any of the income therefrom be paid to the testator’s daughters who may be married at or after his death, and if so, when and how much. 6th. If a valid trust is created by said will, has the trustee power under its terms to sell the whole or any part of the real estate or personal property now forming a part of the principal of said trust or has the Probate Court for the District of Norwich the power to order such sale. 7th. If a sale of the whole or any part of said real or personal estate can be made either by the trustee under the terms of said will or by order of said Probate Court,. what disposition should be made by the trustee of the proceeds therefrom.”</p>

Suit to obtain an adjudication of the rights of the plaintiffs and of all other certificate members of the defendant insurance company, in and to a fund of $1,000,000 or more held for their protection and benefit by the defendant security company, and for other equitable relief; brought to the Superior Court in New Haven County and tried to the court, Robinson, J., upon a demurrer to the complaint; the court sustained the demurrer and rendered judgment for the defendants,…