Volume 81 — Connecticut Reports

Information charging the defendant under General Statutes, § 1148, with carnally knowing and abusing a female child of the age of fifteen years, at Stamford on April 9th, 1907, brought to the Superior Court in Fairfield County and tried to the jury before George W. Wheeler, J.; verdict of guilty and sentence accordingly. It was undisputed that the defendant was a teacher of music at Stamford, and that the girl in question had been one of his pupils.

Action to foreclose a school fund mortgage, brought to the Court of Common Pleas in Hartford County. The city of Hartford filed an answer, setting up certain liens imposed on the land mortgaged under its charter. The other defendants did not appear, and a decree having been rendered against them by default, they failed to redeem.

Action against the city of Waterbury and the Hellmann Brewing Company for the diversion by the city of a watercourse, and by the company of another watercourse, into a city sewer, whereby the plaintiffs’ cellar was flooded, brought to and tried by the Superior Court in New Haven County, Case J., who gave judgment for the defendants.

Application to the Ron. Alberto T. Roraback, a judge of the Superior Court, for the appointment of appraisers to estimate the compensation to he paid to the defendant for land taken for the uses of a street railway. A motion to dismiss the application, and then a demurrer to it, having been successively filed and overruled, the case was heard on the merits, and a judgment rendered appointing appraisers, from which this appeal was taken.

Indictment for murder in the first degree, brought to the Superior Court in New Haven County and tried to the jury before Robinson, J.; verdict and judgment of guilty, and appeal by the accused.

Suit by a trustee under the will of John F. Slater of Norwich, deceased, who died in 1884, for the construction of certain provisions in the will, which was made shortly before his decease and admitted to probate shortly after it; brought to the Superior Court in New London County (George W. Wheeler, J.') and reserved on a finding of facts for the advice of this court at its term to be held in the Second Judicial District in October, 1908.

Suit to determine the equitable title to certain' real and personal property standing in the name of the plaintiff’s deceased wife, brought to and tried by the Superior Court in New Haven County, Curtis, J.; facts found and judgment rendered for the defendants (except in respect to a portion of the personal property), from which the plaintiff appealed.

Petition under chapter 258 of the Public Acts of 1907 for the appointment of a committee to appraise the damages for the taking of the defendant’s toll-bridge and its approaches and appurtenances for the public use of a public highway, brought to the Superior Court in Hartford County (Case, J.') and a committee duly appointed, who awarded the defendant §66,060.78 damages ; the defendant filed a remonstrance to the acceptance of the committee’s amended report, and the court (…

Action to recover damages for personal injuries resulting in the death of the plaintiff’s testator, and alleged to have been caused by the defendant’s negligence, brought by appeal from a judgment of the District Court of Waterbury to the Superior Court in New Haven County and heard in damages before Gager, J.; facts found and judgment rendered for the plaintiff for $1,750, and appeal by the defendant.

Application in the nature of an appeal from an assessment of special benefits on account of the laying out and widening of Stratford Avenue in Bridgeport, taken to and tried by the Superior Court in Fairfield County, Gager, J.; facts found and judgment rendered confirming the assessment, and appeal by the landowner.

Action to recover damages for injuries to certain streets and bridges of the plaintiff city, through the breaking away of the defendant’s dam, which was alleged to be the result of its negligence, brought to and heard in damages by the Superior Court in Fairfield County, Shumway, J.; facts found and judgment rendered for nominal damages only, and appeal by the plaintiff.

<p>Appeal from a decree of the Court of Probate for the district of Waterbury denying the plaintiff’s application for an order of sale of 409 shares of the capital stock of the Apothecaries Hall Company alleged to belong to the estate of Archibald E. Rice, deceased, taken to and tried by the Superior Court in New Haven County, Curtis, J. ; facts found and judgment rendered in favor of the appellee Mary B. R. Munson, and appeal by the original appellant, Ella S. Williams.</p>

Information for carnally knowing and abusing a female child under the age of sixteen years, brought to the Superior Court in Fairfield County and tried to the jury before Gteorge W. Wheeler, J.; verdict and judgment of guilty, and appeal by the defendant.

Action of replevin for four horses and certain farm products, brought to the Superior Court in Fairfield County and tried to the jury before George W. Wheeler, J.; verdict that the plaintiff retain a part and return a part of the goods replevied, which the court, upon defendant’s motion, set aside, upon plaintiff’s failure to surrender, at the suggestion of the court, the possession of certain of the goods awarded to him by the verdict, and appeal by plaintiff.

<p>Suit by a testamentary trustee to determine the validity and construction of the will of Sherman Hartwell of Bridgeport, deceased, brought to and reserved by the Superior Court in Fairfield County, Robinson, J., upon the facts and questions of law stated in the complaint, for the advice of this court.</p>

Action to recover for goods sold, brought to the Court of Common Pleas in New Haven County and tried to the jury before Wolfe, J.; verdict and judgment for the defendant, and appeal by the plaintiffs.

<p>Upon the trial of an action by a trustee in bankruptcy to set aside a voluntary conveyance as being in fraud of creditors, no evidence was offered nor any claim made that the insolvent grantor had-any other property than that referred to in the testimony and in. the arguments of counsel. Held that under these circumstances the trial court might lawfully infer and find that during the period of the debtor’s insolvency he did not in fact own any other property.</p> <p>Judgment having been rendered for the plaintiff in such an action, it is within the discretion of the trial court to appoint a receiver to take charge of the property pending the final disposition of the cause on appeal.</p> <p>It has long been, a rule of public policy in this State that a debtor’s property shall be used to pay his debts, in full if possible, otherwise •pro rata; and that property conveyed by an insolvent debtor in fraud of his creditors shall likewise be subjected to their claims.</p> <p>A voluntary conveyance of property by an insolvent debtor in fraud of creditors then existing, may be impeached by, or on behalf of, those who subsequently become creditors, provided the debtor’s insolvency continues unbroken meanwhile; for the mere substitution of one set of creditors for another works no material change in the situation, nor does it affect the principle upon which the right of impeachment rests.</p> <p>An insolvent debtor transferred his half interest in land to his co-tenant who thereupon, pursuant to an understanding to that effect, conveyed the entire tract to the debtor’s wife and received from her payment for his, the cotenant’s, half interest, but nothing was paid for her husband’s interest. Held that the conveyance of the husband’s half was voluntary and without any valuable consideration.</p>

Action by a member of a fraternal benefit association to recover an amount of sick benefits alleged to be due ber, brought to and tried by the City Court of New Haven,Tyner, J.; facts found and judgment rendered for the plaintiff for $52 damages, and appeal by the defendant.

Actions brought to and tried together by the Superior Court in New( Haven County, Curtis, J. The first was an appeal from certain decrees of the Court of Probate for the district of Naugatuck. They were affirmed by the Superior Court. The second was for an injunction, such other relief as the court might deem proper, and damages. Judgment for plaintiffs to recover $880 damages.

<p>Action in the nature of ejectment, brought to and tried by the Court of Common Pleas in New Haven County, Bennett, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff.</p>

Action to secure the removal of a server alleged to he unlawfully maintained by the defendant in and across the plaintiff’s land, and for damages, brought to and tried by the Superior Court in New Haven County, Gayer, J. ; facts found and judgment rendered for the defendant, and appeal by the plaintiff. The facts found, in so far as they are involved in the discussion and conclusions of the court, are sufficiently stated in the opinion.

Action on a note by the heir at law of the payee, brought to and tried by the Superior Court in New Haven County, Shumway, J. ; judgment for plaintiff.

Action to recover the amount of two promissory notes, brought to and tried by the Superior Court in New Haven County, Roraback, J. ; facts found and judgment rendered for the plaintiff upon the first count for $1,882 damages, and appeal by the defendant.

Noxon of Meriden, deceased, taken to and tried by the Superior Court in New Haven County, Moraback, J.; facts found and judgment rendered confirming said probate decree, and appeal by the original appellant. John O. Noxon, a resident of Meriden in the probate district of Meriden, died at the city of New York November 28th, 1905.

' Action to recover the amount of two savings-bank deposits belonging to the estate of Esther Lathrop of Waterbury, deceased, which were alleged to have been taken and converted by the defendant after her decease and before the plaintiff’s appointment as administrator, brought to and tried by the Superior Court in -New Haven County, Roraback, J. ; facts found and judgment rendered for the plaintiff, and appeal.by the defendant.

Shipman, deceased, and ordering the distribution of his intestate estate, taken to and tried by the Superior Court in New Haven County, Gager, J.; facts found and judgment rendered affirming the probate decree, and appeal by the original appellants. Henry A. Shipman died in Ansonia, September 29th, 1884, leaving a will, which was duly probated, a widow, and three sons, his only children and heirs at law.

<p>The cardinal principle in the interpretation of wills is that the intent of the testator is to be sought after and carried into effect if it can be discovered and has been sufficiently expressed, provided it is not contrary to some positive rule of law.</p> <p>If a will is fairly open to two constructions, one of which will render a bequest illegal and the other valid and operative, the latter construction must be preferred.</p> <p>While there is a presumption that the testator used language in its usual and legal sense, this presumption will be overthrown when an examination of the instrument in the light of surrounding circumstances clearly shows that the intent of the testator will be defeated by so interpreting it, and that the language was used in another sense. Accordingly, words of an inartifically drawn will may thus have a meaning given to them which they do not ordinarily or properly possess.</p> <p>By her will executed in 1883 a testatrix gave the residue of her estate to her four sons in fee, to be equally divided between them. A codicil made six years thereafter revoked that gift as to two of them, M and J, and in lieu thereof gave $1,000 absolutely to each of them, and placed the share of the residue previously bequeathed to them, less said sum of $1,000, in trust for their benefit, directing the trustee to pay over one half of the income to each so long as he lived, and upon the death of either or both “to their heirs at law respectively.” The next sentence directed that at the death of “their wives and all the children” of the said M and J, the said property might be given directly and equally to their grandchildren, whenever they became of age and whenever or as soon as, in the judgment of the said trustees or their successors, they might think best. Neither of these sons had any grandchildren. Held:—</p> <p>1. That it was apparent that the testatrix used the expression “heirs at law” as descriptive of the class of persons more particularly defined by her in the immediately following context as “wives and children”; and that to avoid the creation of an illegal perpetuity it ought to be so interpreted.</p> <p>2. That the “wives” thus designated included only those who were such at the death of the testatrix, and not any woman who since that time might have assumed that relation.</p> <p>3. That such wife and the children of each of said sons, after their respective deaths, were entitled to the income which had previously been payable to him, until the death of the last survivor in each family group respectively, when the trust as to the payment of income ceased.</p> <p>4. That the provision in favor of the grandchildren was in contravention of the statute against perpetuities which was in force in 1891, when the testatrix died, and therefore the remainder, attempted to be given to them, was intestate estate.</p>

Action for an equitable accounting, brought to and tried by the Superior Court in New Haven County upon demurrer to the complaint; the court, Gager, J., sustained the demurrer and rendered judgment for the defendant, from which the plaintiff appealed. The following is the complaint, including the prayers for relief:— “1.

Action in the nature of ejectment to recover possession of a small strip of land in the town of Branford, and for damages, brought to and tried by the Court of Common Pleas in New Haven County, Bennett, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendant. The plaintiffs and the defendant own adjoining lots, which were purchased by them from the same grantor. The defendant’s lot is located north of that of the plaintiffs.

Action to recover the possession of a tract of land, and for damages, brought to the Superior Court in New Haven County and tried to the jury before George W. Wheeler, J.; verdict and judgment for the plaintiff, and appeal by the defendants. The land in controversy is a strip of non-arable land adjoining the seashore, known as Pipe Beach, containing about one acre.

Action to recover for services rendered as a civil engineer, brought to the Court of Common Pleas in New Haven County where the court, Wolfe, J., upon the defendant’s failure to satisfy it that a bona fide defense would be made, and upon its neglect to file an answer, rendered judgment for the plaintiff, from which Stephen Charters, a citizen and taxpayer of the defendant city who had entered an appearance for the defendant, appealed.

<p>An action cannot be maintained against a municipality for a defect • in a highway, if the culpable negligence of a fellow-traveler with the plaintiff was a proximate cause of his injury.</p> <p>A motorman on a street-railway car, having found on his outward trip that the running-board of the car had cleared a barrier erected by the city’s workmen near an excavation made by them in the street, did not warn the conductor of the car on its return trip of the danger from such barrier, his attention having been attracted at the moment to a team in front with which he was seeking to avoid a possible collision. Held that under such circumstances his momentary forgetfulness of the existence of the barrier and failure to give any warning to the conductor, who was on the running-board and was injured, furnished no sufficient ground for an imputation of negligence constituting a proximate cause of the conductor’s injury.</p> <p>Fellow-servants operating a street-railway car owe each other a much ■ less degree of care than that which they are bound to exercise toward their passengers.</p> <p>It is within.the discretion of a trial judge to instruct the jury to ignore evidence which is so weak that a verdict based thereon would be properly set aside by the court.</p>

Action on a judgment of the Supreme Court of Rhode Island, brought to the Court of Common Pleas in New Haven County, where a counterclaim for damages for a breach of a contract of sale was held insufficient on demurrer (Bennett, J.), and judgment rendered for the plaintiff.

<p>An unsuccessful motion to reopen a final judgment, which is not made until long after the time has expired within which a notice of appeal and a request for a finding of facts can lawfully be filed, does not extend the time therefor, nor impose any obligation upon the trial judge to make such finding; although had the motion to reopen been filed before the expiration of the time for giving such notice and filing such request, it might have operated to extend the time therefor.</p> <p>The cases of Beard’s Appeal, 64 Conn. 526, and Sanford v. Bacon, 75 Conn. 544, distinguished.</p>

<p>Action oil an indemnity bond, brought to the Superior Court in New Haven County and tried to the jury before . George W. Wheeler, J.; verdict and judgment for the plaintiff for $9,562.50 damages, and appeal by the defendant.</p> <p>The plaintiff was surety upon a bond given by the National Steam Economizer Company, as principal, to the city of New Haven, to secure the faithful performance by said principal of its contract with said city for the installation of certain heating and ventilating apparatus in a city building. The facts relating to the giving of this bond, and those which led up to a suit by the city thereon, are fully stated in the case of New Haven v. National Steam Economizer Co., 79 Conn. 482, 65 Atl. 959. That action finally resulted in a judgment against the present plaintiff, rendered May 24th, 1906, for the sum of $14,907.56 damages. The cause of action therein was found to have accrued July 27th, 1903, and interest from that date was included in the judgment. This judgment the plaintiff subsequently paid, as also the costs of suit and expenses involved.</p> <p>Shortly after the delivery of this bond to the city, the-Economizer Company gave to the plaintiff its written order upon the city for the first $5,000 to become due under said contract. Subsequently the plaintiff released this order, and in part consideration therefor the defendant, on September 11th, 1902, executed and delivered to the plaintiff the indemnity bond in suit. This instrument was, in its pertinent parts, as follows:—</p> <p>“American Surety Company of New York, hereinafter called the Surety, having, at the request of the National Steam Economizer Company, executed that certain bond, dated November 11, 1901, in the sum of fifteen thousand dollars, conditioned, in substance, for the faithful performance by the National Steam Economizer Company, of a contract with the City of New Haven for the construction of a heating and ventilating apparatus in the new High School building in York Square in the city of New Haven, a copy of which bond is hereto annexed, and at or about the time of the execution thereof, there having been delivered to the said American Surety Company of New York certain collateral, and the said National Steam Economizer Company having requested the said American Surety Company of New York to release the said collateral :</p> <p>“Now, therefore, in consideration of the said American Surety Company of New York releasing said collateral and continuing as surety upon thé said bond, the said National S,team Economizer Company, as principal, and the-Pacific Surety Company, a corporation organized under the laws of the State of California, as surety, do hereby undertake and agree: 1. That they will at all times indemnify and save harmless the said American Surety Company of New York from and against every claim, demand, liability, cost, charge, expense, suit, order, judgment and adjudication whatsoever, and will place the said American Surety Company of New York in funds to meet every claim, demand, liability, cost, charge, expense, suit, order, judgment or adjudication against it by reason of such suretyship and before it shall be required to pay the same. 2. That upon the making of any demand, or the giving of any notice or the institution of any proceeding, preliminary to determining or fixing any liability which the said American Surety Company of New York may be called upon to discharge by reason of such suretyship, they will immediately notify the said American Surety Company of New York thereof, in writing, at its office, No. 100 Broadway, in the city of New York. ... 5. -That the liability of the Pacific Surety Company herein shall be limited to the sum of seventy-five hundred dollars ($7,500) it being understood that the American Surety Company of New York shall be entitled to full indemnification, as hereinbefore provided, from such Pacific Surety Company, up to said amount.”</p> <p>The defendant was duly notified by the plaintiff of the claim made upon it by the city, and counsel for the defendant were in correspondence with plaintiff’s counsel relative to the action upon the bond, aided in the preparation of its answer, were present during a portion of the trial, and were kept advised of the progress of the action. This conduct on the part of the defendant was accompanied with a statement that it was without prejudice to its claim of nonliability. Upon the rendition of the judgment, the plaintiff made demand upon the defendant for reimbursement pursuant to the obligation of the bond. At the time of the commencement of the city’s action against the plaintiff the Economizer Company was and has since remained insolvent.</p> <p>The defendant’s answer contained two defenses in form. The first admitted the first paragraph of the complaint, which set up the execution and delivery of the bond, and pleaded want of knowledge or information as to the remaining allegations which set up the breach. The second, which was double, contained a defense which played no part in the trial, and the defense of fraud inducing the contract, as outlined in the opinion. This embodied the defendant’s real defense, in support of which its evidence was offered and to which its evidence was confined.</p>

Reservation by the Superior Court in Litchfield County, Gager, J., upon an agreed finding of facts in receivership proceedings, to determine to whom moneys in the hands of the receiver of a savings-bank belonged, after the affairs of the bank had been substantially settled.

Action for the conversion of a sum of money entrusted to the defendant for payment to a third person, brought to the Superior' Court in Hartford County where a demurrer to the substitute' complaint was overruled (Shim-way, J.) and the cause was afterward tried to the jury before Curtis, J.; verdict and judgment for the plaintiff, and appeal by the defendant.

Action to recover damages for personal injuries resulting from a defective highway, brought to the Superior Court in Hartford County where a demurrer to the complaint was sustained, Curtis, J., and judgment rendered for the defendant, from which the plaintiff appealed. The complaint contains no allegation upon the subject of written notice by the plaintiff to the defendant of the plaintiff's injuries.

<p>Appeal from a judgment of the Superior Court in Hartford County (Curtis, J.) affirming a refusal of the county commissioners to grant a liquor license to the appellant.</p>

Action to recover a balance due for merchandise sold and delivered, brought to the Superior Court in Hartford County and tried to the jury before Shumway, J.; verdict and judgment for the plaintiff, and appeal by the defendants.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Middlesex County where a demurrer to the complaint was overruled (Ralph Wheeler, J.) and the cause was afterward tried to the jury before Gager, J.; verdict and judgment for the plaintiffs for $750 damages, from which the defendant appealed for alleged error in overruling its demurrer.

Action to recover damages for injuries to a road-roller alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Hartford County and tried to the jury before Curtis, J.; verdict and judgment for the plaintiff for $1,075, and appeal by the defendant.

Action for libel, brought to the Superior Court in Hartford County and tried to the jury before Shumway, J.; verdict and judgment for plaintiff.

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 where a demurrer to the complaint was overruled (Reed, J.) and a hearing in damages was afterward had before Curtis, J.; facts found and judgment rendered for the plaintiff for $600, and appeal by the defendant.

<p>Action to remove a cloud from á title, brought to the Superior Court in New Haven County and reserved (Ralph Wheeler, J.), on an agreed statement of facts, for the advice of this court.</p>

Action in the nature of trespass qu. cl. fr., brought to the Court of Common Pleas in New London County and tried to the jury before Noyes, J.; verdict and judgment for the plaintiffs, and appeal by the defendant.

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate and alleged to have been caused by the bite of a dog owned by the defendant, brought to the Superior Court in New London County and tried to the jury before George W. Wheeler, J.; verdict and judgment for the defendant, and appeal by the plaintiff.

Petition for a new trial on the ground of newly-discovered evidence, brought to the Superior Court in New London County and tried, on demurrer to the petition, by the court, Robinson, J.; the court sustained the demurrer and rendered judgment for the defendant, from which the plaintiff appealed.

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate and alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Hartford County and tried to the jury before Shumway, J.; verdict and judgment for the plaintiff for $2,500 damages, and appeal by the defendant.

Action for the cancellation of .a writing creating a right of way, and for an injunction and damages, brought to the Superior Court in New Haven County and tried to the court, Shumway, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs.

Action to recover damages for a breach of a contract of conditional sale, 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 $696, and appeal by the defendant. September 16th, 1905, the defendant made a conditional sale to the plaintiff of two printing-presses and a paper-cutter.

<p>Suit to foreclose a mortgage of real estate, brought to and tried by the Superior Court in New Haven County, Roraback, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.</p> <p>On August 24th, 1906, the Congress Laundry Company mortgaged land to the plaintiff to secure a demand note to the plaintiff for $1,000, and also to secure the plaintiff’s indorsement upon a four-month note for $1,500 payable at a bank. The mortgage was duly recorded. The condition properly described the notes, contained certain agreements of the mortgagee, one of which was to apply the proceeds of sales of stock to the payment of the indorsed note, unless such payment was waived by the mortgagee in writing, and then provided “that the said grantor in the event of its not paying said note so indorsed, is justly indebted to the said grantee in the further sum of fifteen hundred dollars ($1,500) with interest; the total amount of twenty-five' hundred dollars ($2,500) being payable within twenty (20) months from the 4th day of September, 1906, in payments of five hundred dollars ($500) every four months from date. Now therefore, if said promises and agreements are well and truly kept according to agreement and said money is paid according to the terms above set fortn, then this deed shall be void, otherwise to remain in full force and effect.”</p> <p>The defendant became the owner of the mortgaged property, subject to incumbrances, by purchase from the receiver of the Laundry Company, July 1st, 1907. Upon the trial no question was made as to the note for $1,000, but the parties were at issue upon the question whether, as against this defendant, the mortgage could be enforced as to a note of the Laundry Company for $500, dated March 13th, 1907, indorsed by the plaintiff and claimed by him to be a renewal of so much of the original note of $1,500, the other $1,000 of said $1,500 note having been paid by the Laundry Company.</p> <p>Concerning said indorsed note the trial court has found, in substance, that when it first came due it was renewed with plaintiff's indorsement, and that when the first renewed note came due the company paid $500 on account, and the indorsed renewal was for $1,000 coming due March 4th, 1907. When said note of $1,000 became due, the Laundry Company was unable to meet its liability thereon. At this time the plaintiff was absent, and the Greist Manufacturing Company, at the request of the Laundry Company, and under an agreement made between the said Greist Company, the Laundry Company, and the bank, agreed temporarily, for said Laundry Company and the plaintiff, to advance the money to meet the payment of the indorsed note for $1,000, and thereby to protect the plaintiff’s indorsement thereon, until such time as the plaintiff should return, the Greist Company taking as temporary security for said advancement the personal note of Martley, treasurer of the Laundry Company. It was further agreed by all the parties above mentioned, that the bank would discount the Laundry Company’s note for $500, if the plaintiff would indorse the same as heretofore; the said note being a continuation of the original $1,500 note successively renewed as theretofore stated.</p> <p>The plaintiff returned on March 13th, 1907, and, as agreed, indorsed said Laundry Company note of $500 in order to obtain the balance of the said $1,500 note given originally by the Laundry Company. Said note at its maturity was paid by the plaintiff, after it had been protested by said bank. From money received from the sale of its own stock, the Laundry Company returned to the Greist Company the $1,000 so advanced by it, and thereupon said Greist Company returned to said Martley said temporary note of $1,000.</p> <p>The advancement of said $1,000 by the said Greist Company and the return of said sum to said Greist Company by the Laundry Company was without any intention to pay, cancel, or release said original indorsed mortgage note of $1,500 successively renewed as heretofore stated, and in fact no release, receipt, or quitclaim deed was given by the plaintiff or by said Greist Company to said Laundry Company, nor was it the intention of any of the parties that said advancement was a payment, or liquidation of the liability under the original indorsed $1,500 mortgage note. But it was the intention of all the parties that the plaintiff should retain his mortgage security to protect him on account of his indorsement of the last-mentioned note.</p> <p>The court held that the indorsed note for $500 was included within the mortgage security, and rendered judgment accordingly.</p> <p>From this judgment the defendant appeals, assigning several reasons which, so far as the court overruled them, amount on the merits to the single reason that the court erred in holding that the renewal note of $500 was covered by said mortgage. Minor reasons are that the defendant could contest the amount due on the mortgage; that the defendant might rely upon the mortgage and the books of the mortgagor for the ascertainment of the amount due, and that the court erred in finding facts without evidence.</p>

Action to recover damages for negligently causing the death of the plaintiff’s intestate, brought to and heard in damages by the Superior Court in New Haven County, Gager, J.; facts found and judgment rendered for the plaintiff for $3,000 damages, and appeal by the defendant.

Complaint by a tax collector alleging the nonpayment of certain military commutation taxes, brought to and tried by the City Court of Meriden (Frank S. Fay, J.), which adjudged the defendant guilty and sentenced him to jail until the taxes and costs were paid, from which judgment the defendant appealed.

<p>An intention to transfer a present title, accompanied with a delivery of possession, is all that is required to constitute a valid gift.</p> <p>A savings-bank depositor whose bank-book had been mislaid or lost, signed and delivered to the plaintiff a written order prepared by the bank directing it to pay to the plaintiff the entire amount of her deposit, which the bank upon presentation by the plaintiff accepted without objection. The depositor intended to make a present gift to the plaintiff subject to her own use of the same during her lifetime. Held that the transaction constituted a valid gift of the principal of the fund, the “ use ” retained by the donor being merely the right to the interest accruing on the deposit prior to her decease.</p> <p>It is not essential to constitute a gift that there should be a manual delivery of the subject-matter, nor that the transfer should be made in any particular mode or form. It is sufficient if the donor places in the hands of the donee the means of obtaining possession of the contemplated gift, accompanied with acts or declarations clearly showing an intention to give and divest himself of all dominion over the property.</p> <p>A by-law of a savings-bank regulating the manner in which a transfer of a deposit must be made, is designed for the protection of the bank and its depositors; and the mere fact that a depositor in making a gift’ of his deposit failed to comply therewith, cannot be utilized by his executor to defeat the title of the donee.</p> <p>A gift in consideration of natural affection ought to prevail unless it interferes with the rights of creditors or purchasers.</p>

Action to recover money overpaid through a mistake of fact, brought to and tried by the Court of Common Pleas in New Haven County, Wolfe, J.; facts found and judgment rendered for the plaintiff for $311, and appeal by the defendant. On or about December 5th, 1896, one Martin J. Finnucan was desirous of engaging in the business of selling spirituous and intoxicating liquors in Ansonia.

Action for a negligent collision with a carriage on the highway, brought to the Court of Common Pleas in New Haven County and tried to the jury before Bennett, J.; verdict for the defendant, by direction of the court.

<p>Action to recover damages for injuries to the plaintiff’s premises alleged to have been caused by the negligence of the defendant, brought to the City Court of New Haven where a demurrer to the complaint was sustained (Mathewson, J.) and judgment rendered for the defendant, from which the plaintiff appealed.</p>

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, and alleged to have been caused by the negligence of the defendant, brought to the Superior Court in New Haven County and tried to the jury before Reed, J.; the trial judge directed a verdict for the defendant, from the judgment on which the plaintiff appealed.

Suit to foreclose a chattel mortgage on a piano, given to secure a note for $80, brought to the City Court of Waterbury where a motion to erase the cause from the docket because of the alleged want of jurisdiction in the.court, and also a demurrer to the same effect, were overruled (Burpee, J.) and the cause was afterward tried to the court, Beasley, Acting Judge; judgment for plaintiff, and appeal by the defendant.

Action in the nature of conversion, brought to the City Court of New Haven and tried to the jury before Mathewson, J.; verdict and judgment for the plaintiff for $20 damages, and appeal by the defendant.

Action in the nature of trespass qu. cl. fr., brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. Moses Rogers died in 1824, possessed of a large tract of land comprising Shippan Point in Stamford, and distant about two miles from the center of the present city of Stamford.

Suit to foreclose a mortgage of real estate and obtain possession of the mortgaged premises, brought to the Superior Court in New Haven County where demurrers to parts of the answer and amended answer were sustained (Roraback and Case, Js.), a part of the amended answer was stricken out (Thayer, J.) on motion, and the cause was afterward tried to the court, Gager, J.; facts found and judgment rendered for the plaintiffs, from which the defendant Gault appealed.

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, Roraback, J.; facts found and judgment rendered for the plaintiff for $1,500, and appeal by the defendant.

Appeal to the Superior Court in New Haven County from the disallowance by the commissioners on the insolvent estate of Eugene D. Fisk, deceased, of a claim for 8300,000; heard before Roraback, J., and judgment for the appellants that they have a lawful claim for 8217,000; from which certain of the heirs of the decedent appealed to this court.

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

Action to recover damages for personal injury alleged to have been caused by the defendant’s negligence, brought to and heard in damages by the Superior Court in New Haven County, Shumway, J.; facts found and judgment rendered for nominal damages only, from which the plaintiff appealed. The plaintiff was employed by the defendant to operate a drop-press.

Action by a conservator, founded on a claim for moneys obtained from his ward, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; judgment for defendants.

, confirming the action of the county commissioners of that county in refusing to grant a liquor license to the appellant.

<p>So far as the increase in the number of liquor saloons in a given locality is concerned, there is no difference between granting an original application and issuing a permit for an existing saloon to remove to that locality.</p> <p>A renewal license is one which grants to the same person the same privilege to sell at the same place, as that granted the previous year. A removal permit, on the contrary, allows the licensee to sell at a different place, which may be much more unsuitable than his previous location; and therefore the Superior Court is not required to treat a removal permit as if it was a renewal license.</p> <p>Evidence was introduced of an agreement between the applicant and some of the manufacturers in the vicinity, under which liquor was not to be sold to their employees during certain hours; and the trial court regarded this as evidence against, rather than in favor of, the suitability of the place. Held that no error of law was committed in taking that view.</p> <p>The questions arising on an appeal from the action of the county commissioners in granting or refusing an application for a removal permit are merely whether the commissioners acted legally, or exceeded or abused the powers vested in them.</p>

Action for the specific performance of a contract to renew a lease of the premises of the plaintiff, and for damages, brought to and tried by the Superior Court in Fairfield County, Robinson, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action under General Statutes, § 4053, to settle the title to a parcel of land, brought to the Court of Common Pleas in Fairfield County and heard before Scott, Jjudgment for defendant.

Action to recover money alleged to have been paid to the defendant for and on account of the plaintiff’s intestate, brought to the Court of Common Pleas in Fairfield County where a demurrer to the answer was sustained (Curtis, J.), one to the amended or substitute answer was overruled (Pullman, Acting-Judge), and the cause was afterward tried to the jury before Foster, Acting-Judge; verdict and judgment for the plaintiff, and appeal by the defendant.

Action to recover for ice sold and delivered, with a counterclaim by the defendant for damages on account of its poor quality, brought to the Superior Court in New Haven County and tried to the jury before Reed, J.; verdict and judgment for the defendant for 8681, and appeal by the plaintiff.

Action to recover damages for breach of warranty in the sale of a horse, brought to the Court of Common Pleas in New Haven County and tried to the jury before Bennett, J.; verdict and judgment for the plaintiff for $85, 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 Court of Common Pleas in Fairfield County and tried to the jury before Scott, J.; verdict and judgment for the plaintiff for $500, and appeal by the defendant.

Action to foreclose a mechanic's lien, brought to and tried by the Superior Court in Fairfield County, Robinson, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant Negry. The defendant Negry, being the owner of a lot of land in Bridgeport, on the 15th of August, 1905, entered into- a written contract with Pilotti & Son, a firm of builders, as original contractors, to erect a building thereon.

Suit to determine the respective rights of life tenants and remaindermen under the will of Julia Ann Bishop of Bridgeport, in and to bonds of the Adams Express Company issued by it to its stockholders in 1907, and to one hundred and six shares of the newly issued capital stock of the Westinghouse Air Brake Company, brought to and reserved by the Superior Court in Fairfield County, Reed, J., upon the facts stated in the complaint and answers, for the advice of this court.

Action to recover the amount of certain promissory notes and the daily penalties agreed upon in case of their nonpayment, brought to the District Court of Waterbury and transferred, upon motion of the defendant, to the Superior Court in New Haven County, where the cause was tried to the court, Shumway, J.; facts found and judgment rendered for the plaintiff for .$2,342, and appeal by the defendant.

<p>There is nothing in the Constitution of this State or of the United States which forbids the enactment of a State law licensing the use and sale of intoxicating liquors as a beverage; and in view of the fact that such a law has been one of the permanent features of our State government from 1643 to the present time, it cannot now be successfully maintained that the business of selling liquor to be drunk on the premises is so destructive to public health and morals that the State is powerless to sanction it.</p> <p>The power of legislation vested by our Constitution (Art. 3, § 1) in the General Assembly covers the whole field of legitimate legislation, except as that may be limited by other provisions of that Constitution or by the Constitution of the United States.</p> <p>Subject to these exceptions any legislation is legitimate which is not inconsistent with a republican form of government.</p> <p>The obligation of each State to maintain a “republican form of government” and to observe “due process of law” in the treatment of persons and property, imposed by the Federal Constitution, is not inconsistent with the right of the State either to license and regulate, or to prohibit, the sale of intoxicating liquors.</p> <p>At common law the business of selling liquors was lawful and open to any man, and our statutes do not enlarge but restrict this right.</p> <p>In testing the validity of a State license law it is immaterial whether the purpose of the enactment is the regulation of a business or the raising of revenue; although such an inquiry may be relevant in respect to the validity of a license issued by a municipality under legislative authority.</p> <p>The term “police power” has, at bottom, no other meaning than the general power of governing its people and dominions belonging to every sovereignty.</p>

Action of interpleader to determine the equitable owner of a fund deposited with the plaintiff, derived from a sale of land, brought to the Superior Court in New Haven County and heard by Shumway, J.; judgment that it belonged to the estate of Stephen Whitney.

<p>Action to quiet and settle the title to real estate, brought to and tried by the Superior Court in New Haven County, Robinson, J.; facts found and judgment rendered partly in favor of each party, from which the plaintiff appealed.</p>

<p>Unless the entire evidence bearing upon a given issue of fact is presented on appeal, this court will not undertake to say that the verdict of the jury thereon was not justified.</p> <p>The withholding of evidence which is within the power of a party to produce, gives rise to a presumption of fact against him.</p> <p>Ordinarily it is not incumbent upon the trial court to single out specific portions of the evidence, and to charge the jury that such evidence alone is not sufficient to prove the particular point; it is enough if they are instructed to take into account all the evidence bearing upon disputed points in the case.</p> <p>Riding on the running-board of a trolley-car is not necessarily, and as matter of law, negligence. The determination of that question depends upon all the circumstances existing at the time of the accident, without a statement of which this court is unable to pass upon the correctness of the charge on that subject.</p> <p>In the present case the plaintiff was injured while riding on the running-board of a trolley-car which collided with a truck moving in the same direction. Held that a charge which virtually exonerated the railway company from blame in case the jury found that the truck overtook the car and drove against the plaintiff, afforded the trucking company no ground of complaint.</p> <p>The defendant trucking company contended that the trial court failed to make proper distinctions in its charge as to the relative duties of the railway company, which had accepted the plaintiff as a passenger, and the trucking company, which owed no special duty to him. Held that the charge was correct and adequate upon this point, not only in its statement of legal principles but also in their application to the facts as claimed by the respective parties.</p> <p>A complaint against two defendants for an injury alleged to be due to their joint negligence must necessarily allege negligence upon the part of each; and therefore a specification of the negligence of one of them cannot furnish a basis for a demurrer by the other.</p>

Appeal by the defendant Clark, executor, from the action of the Superior Court in Middlesex County, Gager, J., in allowing an amendment of the original judgment-file in said cause.

<p>Public policy forbids real-estate brokers, and agents generally, from acting for both parties to a transaction, except with their knowledge and assent.</p> <p>A real-estate broker, not theretofore employed by either party, volunteered to suggest to the defendant the purchase of certain real estate as an investment, and to bring her and the owner of the property together. Their negotiations, in which he participated, finally resulted in a sale, and involved a subsidiary agreement that he should receive the usual commission, amounting to $500, of which the seller should pay $200 and the buyer $300; and to this the plaintiff assented. Hetd, that having acted with full knowledge of all the facts bearing on the plaintiff’s relation to the transaction, the defendant could not avoid liability for her share of the promised commission.</p>

Action to recover damages for breach of contract to purchase a car-load of lumber, brought to and tried by the City Court of Hartford, Bullard, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs.

Copies of the motion were sent to each of the justices (Practice Book, 1908, p. 279, § 41), and at the opening of the January term, 1909, of this court the preliminary motion was denied.

Application to the Superior Court in New Haven County, to review an assessment of compensation by the board of aldermen of the defendant, to the plaintiff, on account of the extension of a highway over its land; the court (Roraback, J.) increased the compensation, and the city appealed to this court.

Complaint in the nature of an appeal from an order removing the plaintiff from the office of police commissioner of the city of New Haven, brought to and tried by the Superior Court in New Haven County, Reed, J.; facts found and judgment rendered affirming the order of the defendant, and appeal by the plaintiff.

Appeal by certain creditors of the defendant from an order and decree of the Superior Court in Hartford County, Curtis, J., in receivership proceedings, allowing the final account of the receiver.

Suit for an injunction to secure the reinterment of the remains of a decedent in their original place of burial in the plaintiff’s lot, from which they had been removed by the defendants, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; facts found and judgment rendered for the defendants, from which the plaintiff appealed.

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, brought to the Superior Court in New Haven County and tried to the jury before George W. Wheeler, J.; verdict and judgment for the defendant, and appeal by the plaintiff. The plaintiff’s intestate, Louis Freedman, was struck and killed by a train of the defendant on its Northampton Division at a grade-crossing on Brewster Street in the city of New Haven.

Action in the nature of scire facias, against a garnishee, brought to the Court of Common Pleas in Litchfield County and tried to the jury before Mathewson, Acting-Judge; upon motion of the defendant the trial court directed a verdict for it, from the judgment upon which the plaintiff appealed.

Action to recover money secretly received by the defendant, a broker, upon a sale of real estate placed in his hands by the plaintiffs, brought to the Superior Court in Hartford County and tried to the jury before Shumway, J.; verdict and judgment for the plaintiffs for $850 damages, and appealed by the defendant.

Action for refusing to pay a judgment debt, while having sufficient estate, not exempt from execution, concealed and withheld so that the same could not be taken by legal process; brought to the Court of Common Pleas in Hartford County and tried to the jury before Peck, J.; verdict and judgment for defendant.

<p>General Statutes, §§ 4135-4138, creating, under certain conditions, a mechanic’s lien in favor of an original contractor or any subcontractor for materials furnished and services rendered in the construction of “any building, or any of its appurtenances,” was not intended to apply to a public schoolhouse, or to any public building owned by the State or by any of its municipal corporations created for purely governmental purposes, the cost of which could be defrayed by the free exercise of the power of taxation.</p> <p>The equities of a subcontractor are derived from, and are not superior to, those of the original contractor.</p> <p>This statute is in derogation of the common law, and calls for a strict rather than a liberal construction.</p> <p>Statutes which are general in their terms may nevertheless admit of implied exceptions, if the intent of the lawmakers is sufficiently clear when read in the light of the conditions which called for such legislation.</p> <p>The mischief which a statute was designed to remedy is an important guide in ascertaining its meaning.</p> <p>The case of Botsford v. New Haven, Middletown & Willimantic R. Co., 41 Conn. 454, distinguished.</p>

Action by a trustee in bankruptcy to recover money alleged to have been received by the defendant from the estate of the insolvent in violation of the Bankrupt Act, brought to and tried by the Court of Common Pleas in New Haven County, Wolfe, J; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

<p>The loss or destruction of writings is a preliminary matter to be decided by the trial judge before resort can be had to secondary evidence of their contents; and if such evidence is to be excluded because, in the opinion of the trial judge, sufficient proof of the loss or destruction of the writings has not been made, that reason should be announced at the time so that, if possible, the deficiency of proof upon that point may still be supplied. If no such announcement is then made, the incorporation of a statement in the finding, made after trial, that the secondary evidence was excluded partly for that reason, is immaterial.</p> <p>Evidence of the authenticity of statements made in correspondence between illiterate persons is not necessarily to be confined to the testimony of the amanuensis. The statements may relate to matters which could have been known only to the person from whom the letters purport to come, or they may be expressed in a way peculiar to him. Accordingly, proof of their contents, when the letters themselves are lost or destroyed, may be of material importance in determining their authenticity, and is therefore admissible for that purpose in connection with whatever extrinsic evidence to the same point may be offered by either party.</p> <p>An original tax-list from the proper official repository, signed by a mark and containing a certificate of one of the assessors that he had in fact administered the prescribed oath to the taxpayer, now deceased, is admissible in evidence to show that the latter filed a list of his property, although the assessor, when called as a witness several years later, could not say whether it was the decedent or some one else that appeared before him.</p> <p>Such a certificate is prima facie evidence of the truth of what is contained in it, on the principle that every one acting officially is presumed to have done his duty until the contrary appears.</p> <p>A tax-list signed and sworn to by a stranger as “agent” is inadmissible to prove that the taxpayer filed a list, unless authority to act for the latter is shown.</p> <p>There is no presumption that those assuming to act as private agents are such agents in fact, nor that what private agents may do is within their authority.</p>

Application by the State's Attorney, to the Superior Court in New Haven County, for a writ of mandamus. An alternative writ having been issued, it was quashed (Bennett, J.) on motion of the defendant.

<p>Action to recover a balance due for a cash register sold to the defendant, brought by appeal from a judgment of a justice of the peace to the City Court of Meriden and tried to the jury before Fay, J.; verdict and judgment for the plaintiff for $90, and appeal by the defendant.</p>

Action by a policeman to recover an increased per diem compensation or wage, pursuant to a city ordinance, brought to and reserved by the Court of Common Pleas in Fairfield County, Scott, J., upon a finding of facts, for the advice of this court.

Action by the indorsee against the maker of a negotiable note, brought to and tried by the Superior Court in Fairfield County, Reed, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant. The plaintiff is the owner, for value, of a note drawn by the defendant to his own order, indorsed by the latter in blank, and delivered by him to the plaintiff.

<p>Action to recover the amount of a promissory note delivered in escrow, the terms and conditions of which were alleged to have been complied with, brought to the Superior Court in Windham County and tried to the jury before Roraback, J.; verdict and judgment for the plaintiffs, and appeal by the defendants.</p> <p>One of the plaintiffs, St. Paul’s Episcopal Church, is a voluntary association of communicants of the Protestant Episcopal Church of the United States, and a mission station of that church in Willimantic, and the other plaintiff, Richard D. Hatch, is the missionary in charge of that mission. The defendants are the executors of the will of Lucy H. Boardman, who died March 29th, 1906.</p> <p>The first count of the complaint alleges that on March 27th, 1906, Mrs. Boardman executed under seal and delivered to the defendant William T. Fields, in escrow, a promissory note for $20,000, which reads as follows: “New Haven, Conn., March 27, 1906. One year after date I promise to pay to the order of R. D. Hatch, of Willimantic, Conn., twenty thousand dollars at The Nat. Tradesmen’s Bank, New Haven, Conn. Value received. Lucy H. Boardman, [L. S.]”; that the terms of said delivery provided that Fields retain the note in his possession to be delivered to the plaintiff Hatch for the purpose of building a Protestant Episcopal Church in the city of Willimantic, provided that within one year from the date of the note the further sum of $10,000 be raised for the same purpose. It further alleges that the terms and conditions of the delivery were by Fields communicated to Hatch; that the latter, within the year, raised the $10,000 in fulfillment of the condition; and that the claim for $20,000 was duly presented to the defendants as executors, and was disallowed.</p> <p>The second count alleges that on March 26th, 1906, the plaintiff Hatch promised Mrs. Boardman that if she would give him $20,000 for the purpose of building such church, upon condition that $10,000 in addition be raised for the same purpose within one year, he would give $2,000 toward said $10,000 and would personally endeavor to secure the balance, and that on March 27th, 1906, Mrs. Boardman accepted said offer and in performance of said agreement delivered to Fields her note for $20,000, payable one year from date, to be held by him in escrow until the performance of the conditions of said agreement, and then to be delivered to Hatch. The other allegations are that Hatch performed all the conditions on his part to be performed, and, relying upon the agreement, by the expenditure of time and effort, within the year raised $10,000 for building the church, and notified Fields thereof, and that the claim was duly presented to the defendants as executors, and disallowed.</p> <p>The answer, as to both counts, admits the execution of the note, denies that it was delivered to Fields in escrow, or that the $10,000 was raised within the year, or that the claim was presented to the executors, and alleges that there was no consideration for the note; and as to the second count, it also denies the alleged agreement.</p> <p>The plaintiffs claimed to have proved that Hatch immediately began efforts to raise the $10,000, and set apart therefor securities of his own for more than $2,000, which he has held for this purpose ever since; that he also within the year, raised the following sums in the following manner for the purpose of building the church: $1,689.16 in small subscriptions, of which $1,119.91 was paid in within the year; $1,000 by an appropriation of the Missionary Society of the Diocese of Connecticut, made upon the condition that the whole $10,000 was raised; and $6,000 by the appropriation, by the Bishop and Standing Committee of the diocese, of a legacy of that amount left to them to dispose of by the will of Lucretia Terry; and that the sums thus raised, including the $2,000 set aside by him, amount in all to $10,119.91. The plaintiffs also claimed that the evidence showed that Fields had notice that this sum had been raised, also that the claim now in suit was duly presented to the executors.</p> <p>The defendants offered no evidence, but claimed that the evidence of the plaintiffs showed that Mrs. Boardman never saw Hatch and made no agreement with him; that there was no consideration for the note; that Fields was at the time of Mrs. Boardman’s death, and for fifteen years prior thereto had been, her business agent in charge of most of her financial affairs, and received the note in this relation and not as depositary of it in escrow; that the plaintiffs had no knowledge of the existence of the note, and had not accepted the conditions imposed by Mrs. Boardman until after her death, and that only $1,119.91 of the necessary $10,000 had been raised.</p> <p>The plaintiffs claimed that, the note being under seal . and purporting to be given for value received, the consideration could not be questioned.</p> <p>The court, upon the first count, instructed the jury, among other things, as follows: “Keeping in mind the instructions already given you, and the claims made, I say to you that if you find from the evidence that Mrs. Board-man delivered the note to Mr. Fields upon the terms and condition that he retain said note in his possession to be delivered to the plaintiff, Mr. Hatch, for the purpose of building a Protestant Episcopal Church in Willimantic, provided and upon condition that within one year from March 27th, 1906, the further sum of 810,000 was raised; that the time of delivery of the note and conditions were communicated to Mr. Hatch; and that he fulfilled said conditions by raising said sum of 810,000 within one year from March 27th, 1906; and, further, that within the time limited he exhibited this claim to said executors, then, . . . under such circumstances, you should find for the plaintiffs upon the first count.”</p> <p>The court, upon the second count, instructed the jury that “a promise to donate money to a charitable or religious organization, either by a subscription or by giving a note, is a gratuitious promise, which cannot be.enforced unless some consideration therefor exists”; and that “to constitute a sufficient consideration for this contract, you must find that either a benefit accrued to Mrs. Board-man by signing the note, or a loss, trouble or inconvenience accrued to or a charge of obligation rested upon, St. Paul’s Church or the Rev. Mr. Hatch, as a result thereof.”</p> <p>The court also instructed the jury that “it is necessary to the validity of a conditional delivery, or a delivery in escrow of an instrument, that it be placed in the hands of a third party or stranger, who is called the depositary; but a stranger, as used in this sense, is any person not a party to the instrument or transaction, and the fact that the depositary has acted in other matters as an agent or attorney of the party making the delivery does not affect the validity, provided he received the instrument simply as a depositary for the purpose of making a delivery of it. If, therefore, you find that Mrs. Boardman placed the note in the possession of Fields, not as her agent, but solely for the purpose of delivering the note to Hatch upon the performance of the prescribed condition, then there was a good conditional delivery of the note.”</p> <p>The jury were also instructed that “the plaintiffs to recover must show by the evidence that the condition prescribed by Mrs. Boardman has been fulfilled, namely, that $10,000 was raised within a year from the delivery of the note to Mr. Fields. . . . The court cannot, as a matter of law, give you the details as to the manner in which this money was to be raised, which the parties have omitted, and which Mrs. Boardman omitted, but instructs you that”the plaintiffs would, under the alleged provision, be bound to do all things that would be reasonably necessary and proper to raise the $10,000, taking into consideration in determining what should be done under all the surrounding circumstances, the relation of the parties to this subject, and the apparent purpose and intention of Mrs. Boardman in using this expresssion. In this connection, you should at least find that the sum of $10,000 has been paid to the Mission, or that good, substantial, bona fide subscriptions or obligations had been made to it for that sum for the new church building within the time limited.”</p> <p>The defendants assigned as reasons of appeal that the court erred, in charging as above, in refusing to charge certain requests of the defendants, in admitting certain evidence against the defendants’ objection, and in denying the defendants’ motion for a new trial upon the ground that the verdict was against the evidence.</p>

Appeal, from a decree of the Court of Probate for the District of New Haven, which dismissed-an application to revoke a grant of letters testamentary to Annie A. Murdoch as executrix of the will of William B. Murdoch, brought to the Superior Court in New Haven County and heard by Reed, J. Judgment confirming the decree of probate.

Action to recover for the loss of a stock of merchandise due to the collapse and fall of a leased building, and alleged to have been caused by the defendants’ negligence, brought to and tried by the Superior Court in New Haven County, Robinson, J., upon a demurrer to the complaint filed by one of the defendants; the court sustained the demurrer and rendered judgment for that defendant, from which the plaintiff appealed.

Information under General Statutes, § 1296, for threatening and using means to intimidate and compel certain employees 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 Wolfe, J.; verdict and judgment of guilty, and appeal by the accused. The information is in three counts.

Action in the nature of ejectment, brought to the Court of Common Pleas in New Haven County and tried to the jury before Wolfe, J.; verdict and judgment for the plaintiffs, and appeal by the defendant. This case was formerly before this court. 79 Conn. 493, 65 Atl. 955. The facts out of which it arises are sufficiently stated there.

Action upon a certificate of insurance to recover indemnity for loss of time resulting from bodily injuries, brought to the Superior Court in Fairfield County where a demurrer to the complaint was overruled (Robinson, J.), the second defense was stricken out (Reed, J.) and the cause Was afterward tried to the court, Robinson, J.; facts found and judgment rendered for the plaintiff for $1,235, and appeal by the defendant.

Action to recover an indebtedness for rent and for costs in a summary process suit, brought before a justice of the peace and thence, by the plaintiff’s appeal, to the Court of Common Pleas in Hartford County and tried to the court, Coats, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

<p>The condition of a bond given upon the issuance of a temporary injunction, viz, to answer all damages in case the plaintiff fails “to prosecute the action to effect,” is not satisfied by a judgment for ' the plaintiff which is afterward set aside on appeal; in order to fulfil this condition the plaintiff must obtain a final decision that he was entitled to the injunction, or some order equivalent to such decision.</p> <p>In a suit by the obligor to secure the cancellation of such a bond, the material question is whether there has been a breach of the condition; and if a breach is proved and some damage found, the trial ‘ court may well refuse to cancel the instrument, and leave the parties to determine the amount of such damages in an action at law.</p> <p>The facts in the present case reviewed and the conclusion of the trial court, that the defendants had suffered some damage by reason of their compliance with the injunction, upheld.</p> <p>Under an allegation that no damage resulted to the defendants from obeying the injunction order, it devolves upon the obligor, who seeks the cancellation of the bond, to prove the truth of that averment.</p> <p>A court of equity will not decree the cancellation of a written instrument when the party seeking such remedy has, upon his own theory of the controversy, a good defense at law to a purely legal demand based thereon.</p> <p>Nor will a cancellation be decreed when it appears that the real purpose of the suit is to prevent a resort by the obligees on the bond to the courts of another State to obtain therein an adjudication of the rights of the parties, unless it is shown that the rights of the obligor will be unfavorably affected by a trial in such jurisdiction.</p>