Volume 83 — Connecticut Reports

Information for loaning money and charging interest therefor in excess of fifteen per cent per annum, and for taking notes for amounts greater than those loaned, in violation of chapter 238 of the Public Acts of 1907, brought to the Superior Court in Hartford County and tried to the jury before Burpee, J.; verdict and judgment of guilty, and appeal by the accused.

Suit to construe the will of Jeremy H. Holcomb of East Granby, deceased, brought to and reserved by the Superior Court in Hartford County, Case, J., upon the facts set forth in the complaint, for the advice of this court.

Action by the trustee under the will of Smith Wilkinson of Pomfret, deceased, for a judicial construction of it, brought to the Superior Court in Windham County and reserved (Robinson, J.), on… Held: managed and disposed of in the same manner as the estate given to him in trust by my said last Will and Testament.” At his death his heirs at law were Edmund Wilkinson, Abilene Howe Whitaker, Nancy W. Mason, and three children of Elizabeth M. Perkins.

Action for personal injuries received by one of the defendant’s employees in the course of his employment, brought to the Superior Court in Windham County and tried to the jury before Bennett, J. A motion for a nonsuit was granted, and a motion to set aside, the nonsuit denied.

Action to recover damages for false imprisonment, brought to the Superior Court in Hartford County and tried to the jury before Burpee, J.; the jury returned a verdict for $800 against both defendants, which the trial court set aside as to the defendant Moore but allowed to stand as against Bromage, from the judgment on which he appealed.

Action to recover a balance alleged to be due for a machine sold to the defendant and payable in instalments, brought to and tried by the Court of Common Pleas in Hartford County, Coats, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

<p>Appeal from, the allowance, in part, of a claim of $17,000 against the estate of Agnes Coffey, deceased, taken by the defendants to the Superior Court in Fairfield County, and heard before Burpee, J. Judgment that the claim be allowed, to the amount of $12,500.</p>

Action for breach, of a special contract, brought to the Court of Common Pleas in Fairfield County and tried to the court, Scott, J. Judgment for defendant.

Action by a stockholder in the defendant company against it and its directors, for an injunction against its declaring a stock dividend; brought to the Superior Court in Fairfield County. A temporary injunction was granted (Burpee, J.) and the cause then reserved on a demurrer to the answer, for the advice of this court.

Action for injuries received from a collision between a wagon and a street-car, brought to the Court of Common Pleas in Fairfield County and tried to the jury (Scott, J.). At the conclusion of the plaintiff’s testimony a nonsuit was granted on the ground that there had been no sufficient evidence of due care on his part. A motion to set the nonsuit aside was subsequently denied.

Information for keeping a house of ill-fame, brought to the Criminal Court of Common Pleas in New Haven County and tried to the jury before Simpson, J., after a demurrer to the information had been overruled; verdict and judgment of guilty, and appeal by the accused.

<p>An upper proprietor who intercepts the natural flow of surface water by means of a ditch upon his own land, thereby preventing it from flowing onto the land of a lower adjoining owner, is not bound to maintain and keep open the ditch for the benefit of the latter, in the absence of a prescriptive right on his part.</p> <p>If surface water is increased in quantity or its natural flow is altered to the damage of the lower adjoining proprietor, he may have a cause of action, provided such result is due to the wrongful act of the upper proprietor; but such cause of action is in nowise dependent upon the existence of a ditch which the lower owner has no right to have kept open for the protection of his premises; and therefore a suit to recover damages for filling up such a ditch must fail.</p> <p>A prescriptive right to collect the surface water upon one’s own land and to discharge the same, by means of culverts, upon the land of the lower adjoining proprietor, is not necessarily lost because for ten or eleven years a ditch upon land of the upper proprietor has intercepted the flow and prevented the surface water from passing to the premises of the lower proprietor.</p> <p>A plaintiff’s right of recovery rests upon and is limited by the facts alleged in his complaint.</p> <p>A requested instruction may properly be refused which is not relevant to the evidence and claims of the parties.</p>

<p>In an action to recover an alleged balance for a car-load of butter, the parties were at issue as to the terms of the sale, the plaintiffs claiming that their telegraphic offer of seventeen cents per pound “net to us,” which was sent to the agent of the carrier at Now Haven and communicated by him to the defendant, had been accepted by them, while they insisted that they had orally agreed with such agent to take it for the price named provided they were to be free from all charges against them for its transportation. A verdict having been rendered for the plaintiffs, the defendants appealed. Held:—</p> <p>1. That the fact that the telegram containing the plaintiffs’ offer was addressed to the agent of the carrier instead of being sent directly to the defendants, was immaterial, provided they agreed to its terms after having seen the dispatch or after the carrier’s agent had orally repeated to them its contents.</p> <p>2. That the statement made by the trial judge in his charge, to the effect that the original contract for the butter had been rescinded after the car had reached its destination and the defendants had refused to accept the butter because it was not' up to the quality ordered, was not objectionable, and was supported by the claims of each party and by the facts as shown by the record.</p> <p>3. That in the situation in which the parties were placed, the words of the plaintiffs' offer, seventeen cents “net to us,” whether taken in their ordinary sense or in the sense attributable to them by the general usage of the butter trade, meant the same thing, viz., seventeen cents per pound free from all charges and deductions; and therefore the admission of evidence to show that the words had that meaning in the butter trade, if erroneous, was harmless.</p> <p>4. That evidence of what the butter was reasonably worth was properly received, since the plaintiffs might have recovered upon that basis, upon failing to prove the agreed price as alleged.</p> <p>5. That requests to charge having reference to the original contract between the parties were properly refused, since it was agreed that such contract had been abandoned and a new one made.</p> <p>Objections to the form of questions asked of a deponent, or because a proper foundation for them has not been laid, must be taken at " the time the deponent testifies, so that an opportunity may be had for correcting such informalities; otherwise objections of that nature taken upon the trial will be overruled.</p> <p>The trial court, against a general objection that the notice was insufficient, admitted in evidence depositions taken in Kansas eleven days after the adverse party in this State had been notified. Held that so far as appeared there had been no improper or unreasonable exercise of the court’s discretion in this ruling.</p>

Action for damages for negligently killing the plaintiff’s intestate, brought to the Superior Court in New Haven County and tried to the jury (Case, J.). A nonsuit was granted and a motion to set it aside denied.

Action to establish a claim against the estate of a deceased person and to secure its payment out of distributed assets, brought to and tried by the Superior Court in New Haven County (Curtis, J.) upon a demurrer to the complaint; demurrer sustained, judgment rendered for the defendants, and appeal by the plaintiff.

Action to foreclose a mechanic’s lien on an electric railway, its property and franchises, brought to and tried by the Superior Court in New Haven County, Curtis, J., upon an agreed statement of facts; 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 Fairfield County and tried to the jury before Gager, J.; verdict and judgment for the plaintiff for $650, and appeal by the defendant.

; facts found and judgment rendered confirming, in the main, the action of the selectmen, and appeal by the original appellant.

Action to recover for services in effecting a purchase of real estate, 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 $212, and appeal by the defendant.

Action to set aside a fraudulent conveyance, and for damages, brought to the Court of Common Pleas in New Haven County. The court (Wolfe, J.) ordered the issues of fact to be tried by the jury. Certain interrogatories were submitted to them and answered, and judgment rendered for the plaintiff. The complaint stated this case: The defendant Andrew J. Siedlecki, on July 6th, 1906, secured a loan of $800 from the plaintiff by false representations.

Suit for the cancellation of certain deeds of real estate, for the specific performance of an agreement for the sale of the land, and for damages, brought to and tried by the Superior Court in New Haven County, Curtis, J., upon a demurrer to the complaint by two of the defendants; demurrer sustained, judgment rendered in favor of those defendants, and an appeal by the plaintiffs.

<p>Motions of the defendants and appellees to dismiss the plaintiff’s appeal in each case for want of prosecution.</p>

Plea in abatement, by the plaintiff and appellee, to the defendant’s appeal to this court; and motion by the appellant for leave to amend his appeal.

, upon a demurrer to the special defense of the answer; the court sustained the demurrer and rendered judgment for the plaintiff, from which the defendant appealed.

Information in the nature of quo warranto to determine the respondent’s right to the office or position of searcher of records in the department of public works of the city of New Haven, brought to and tried by the Superior Court in New Haven County, Curtis, J.; facts found and judgment rendered in favor of the relator, from which the respondent appealed. The State ex rel. Neal v. Brethauer.

Action to recover salary alleged to be due the plaintiff as searcher of records in the department of public works in the city of New Haven, brought to and reserved by the Superior Court in New Haven County, Curtis, J., upon a finding of facts, for the advice of this court. The salary attached to the place in question and fixed by the board of finance was $1,200 per year, payable in weekly payments of $23.04 each week.

<p>It is essential that a right of action should accrue and exist before a suit can be brought to enforce it; and therefore an action in the nature of ejectment cannot be maintained against one who, at its commencement, is not a disseizor, but is in possession under an unrevoked license from the plaintiff. Nor, under such circumstances, can the mere bringing of the action be deemed, either in reason or authority, a sufficient revocation of the license to justify the maintenance of the action.</p>

<p>It is well established in this State, that in submitting a case, civil or criminal, to the jury, the court may, at its discretion, call their attention to the evidence, or lack of evidence, upon any point in issue, and comment upon the weight of the evidence, provided it does not direct or advise the jury how to determine the matter.</p> <p>Upon a trial for murder in the first degree the accused testified that he did not intend to shoot the decedent but only to use his pistol to threaten and scare him and cause him to desist from his assault; and that while he had hold of his revolver in his pocket for that purpose, and was endeavoring to free himself his hand was wrenched or pulled out, and in the struggle the revolver was accidentally discharged. He also claimed—with reference to certain statements which the State’s witnesses testified he made immediately after the shooting'—-that his mind had become affected by drink to such an extent that he did not know what he was talking about. The trial judge, after telling the jury that the accused could not be held guilty of any crime under the indictment, if they found the pistol was accidentally discharged, as he contended, remarked that this testimony of the accused “would exclude any suggestion of self-defense,” although if there was any other testimony in the case tending to show that the shot was in fact fired in self-defense, the jury should consider it carefully in the light of the law of self-defense as previously stated to them. Held that the comment made was clearly within the discretion of the trial judge, and afforded the accused no just cause of complaint.</p> <p>In another portion of his charge the trial judge said that the death of the decedent in the maimer and by the means substantially set forth in the indictment, did not appear to be contested. Held that in view of the context it was a perversion or misconstruction of this statement to treat it as an intimation that the accused did not contest his responsibility for the death of the decedent and was therefore guilty of murder in the first degree.</p> <p>A statement, explanatory in its nature, which, in so far as it involves any expression at all of the court’s opinion, is favorable to the accused, cannot be urged by him as error.</p> <p>The appellant also complained because the trial court did not call the attention of the jury to the fact that there was testimony that he, the accused, was so far under the influence of liquor that he did not know what he was talking about. Held that the charge on this subject was adequate and fair; and that if it indicated the existence of any opinion of the trial judge upon the question of fact, it was so carefully guarded that the jury could not have been improperly influenced by it.</p> <p>Sentences, extracts, or detached parts of a charge, when claimed to be erroneous, are to be read in connection with their context and with the instructions as a whole.</p> <p>It is reprehensible for counsel to go outside the record in addressing the jury; but a new trial will not ordinarily be granted for that reason, especially if no objection was made to the alleged improper remark in the court below.</p>

<p>Action to recover damages for breach of contract in the sale and delivery of an automobile, brought to the Superior Court in New Haven County and tried to the jury before George W. Wheeler, J.; verdict for the defendant, which the trial court set aside as against the evidence, from which the defendant appealed.</p>

Action to recover possession of certain bank-books evidencing savings-bank deposits, alleged to have been obtained from the plaintiff by fraud and imposition, also damages, brought to the District Court of Waterbury and tried to the jury before Peasley, J.; verdict and judgment for the plaintiff for $849, and appeal by the defendant from the denial of his motion for a new trial upon the ground of a verdict against evidence»

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in operating his automobile, 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 $2,125, and appeal by the defendant.

Action to recover damages for breach of contract, brought to and tried by the District Court of Waterbury, Peasley, J.; judgment for the plaintiffs, from which the defendant appealed because of the alleged disqualification of the trial judge.

<p>The fact that the plaintiff, in an action for negligence, has himself violated the law is immaterial and irrelevant, unless a causal connection is shown between his illegal act or omission and the subsequent injury for which he seeks to recover.</p> <p>In the present case the plaintiff’s intestate was run over and killed by an automobile while superintending the renewal of a telephone underground service wire at a manhole in a city street. An ordinance of the city required the use of a lighted red lantern at the excavation, but none was in fact used. Held that it was for the jury to determine, under proper instructions, whether the absence of the lantern contributed to the accident or not; also whether the decedent, in remaining at the manhole after he saw the approaching automobile, acted as a reasonably prudent person would have acted under similar circumstances.</p> <p>An assignment of error in the form of a qucere: whether or not the trial court erred in doing this or that, is improper; error should be directly asserted of each ruling or instruction which the appellant desires to have reviewed. '</p> <p>An omission to charge the jury upon immaterial or undisputed matters is harmless.</p> <p>Rulings upon questions of evidence of slight importance, or upon inquiries the allowance or disallowance of which is largely within the discretion of the trial court, furnish no ground for a new trial.</p> <p>The refusal of the trial judge to submit to the jury written interrogatories prepared by one of the parties, is not an improper exercise of his discretion.</p> <p>In the absence of any complaint or exception at the time, an objectionable remark of counsel in argument to the jury can rarely justify a retrial.</p>

Action for an accounting of the profits of a sale of real estate, and for payment of the amount found due thereon, brought to and tried by the Superior Court in New Haven County, Curtis, ./.; facts found and judgment rendered for the plaintiff for $1,591, and appeal by the defendant.

Action to recover damages for assaulting the plaintiff and forcibly taking from him his badge as a policeman, brought by removal from the City Court of New Haven to the Court of Common Pleas in New Haven County and tried to the court, Simpson, J.; facts found and judgment rendered for the plaintiff for $60, and appeal by the defendants.

Action to recover the cost of furnishing and laying a twenty-inch curb in the street in front of the defendant’s cemetery, brought to the City Court of Meriden where a demurrer to the special defense was overruled and the cause was afterward tried to the court, Fay, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiffs.

Action for assault and battery, brought to the Court of Common Pleas in New Haven County and tried to the jury before Wolfe, Jverdict and judgment for the plaintiff for $150, and appeal by the defendant. The plaintiff, a boy sixteen years of age, was employed in a factory in which the defendant was superintendent and manager.

Action to recover an alleged balance due for merchandise sold, brought to and tried by the Court of Common Pleas in New Haven County, Simpson, J.; facts found and judgment rendered for the plaintiff for $158, and appeal by the defendant.

Action to recover damages for personal injuries alleged to Have been caused by the defendant’s negligenee, brought to the Superior Court in New Haven County and tried to the jury before Gager, J.; verdict and judgment for the plaintiff for $500, and appeal by the defendant.

Suit to restrain the defendant from interfering or disturbing school teachers employed by the plaintiff pursuant to the alleged vote of the school district, brought to and tried by the Court of Common Pleas in New Haven County, Wolfe, Jfacts found and judgment rendered for the defendant, and appeal by the plaintiff. The plaintiff was duly elected a committeeman of the Leete’s Island School District for the term of one year, beginning July 15th, 1908.

<p>Evidence of the existence of a contract between the parties is essential to the establishment of a breach of warranty, express or implied: for without a contract there can be no warranty.</p> <p>A warranty of an article sold enures to the benefit of the original purchaser only: a subsequent vendee, being a stranger to the contract, cannot sue for its breach.</p> <p>A jury will not be permitted to guess or surmise the existence of the alleged negligence from facts and circumstances which do not fairly show it.</p> <p>In the present case the plaintiff sought to recover damages for personal injuries caused by the explosion of a gun made by the defendant, alleging negligence in its manufacture and inspection. Having introduced the gun as an exhibit, the plaintiff offered evidence that the cartridges used in the barrel which exploded fitted somewhat loosely. Held that while this evidence furnished a foundation for the testimony of experts to show that the thickness of the barrels, as shown by the gun itself, was insufficient for safety, or that the quality of the steel was poor, or that the barrels were improperly and irregularly bored, and that the looseness of the fit of the cartridge was liable to cause a disruptive explosion, it was entirely inadequate, standing alone, to justify anything more than a mere conjecture or guess as to the cause of the accident.</p>

Appeal by the plaintiffs from an order and decree of the Court of Probate for the district of New Haven, requiring one half of the estate of Elizabeth S. Bradley of New Haven, deceased, to be turned over to John Thompson, an alien, or to his legal representative, taken to and tried by the Superior Court in New Haven County, Burpee, J.; facts found and judgment rendered confirming the decree of the Court of Probate, from which the plaintiffs appealed.

Action for an equitable accounting and for a recovery of the sums found to be due thereon, brought to and tried by the Superior Court in New Haven County, Curtis, J.; facts found and judgment rendered for the plaintiff for $11,763, with interest from November 1st, 1901, from which each party appealed.

Indictment for murder in the first degree, brought to the Superior Court in Fairfield County and tried to the jury before Ralph Wheeler, J.; verdict and judgment of guilty of murder in the second degree, and appeal by the accused. It was not disputed upon the trial that Demery, a brother-in-law of the defendant, was killed by a shot from a pistol in the latter’s hands.

<p>A clause in the charter of the city of Waterbury prescribed that no public improvement should be ordered until an appropriation for the same had been duly made. Held that this restriction would not prevent the board of aldermen from passing a final order for the new layout of a street, provided adequate appropriations had theretofore been made which would become available for that purpose before any claim for damages arising from such improvement could mature or be enforcible against the city.</p> <p>The plaintiff contended that an amendment of the defendant’s charter, passed in 1905, providing that benefits and damages in cases of this character should not be payable or collectible until the completion of the improvement, was unconstitutional. Held that even if this were true the plaintiff would gain nothing, since in that event the original provision of the charter would apply, by the terms of which a claim for damages or benefits would not accrue until after the time when the appropriation in the present case became available.</p> <p>Proceedings for a public improvement cannot be said to have passed their tentative stage until final action thereon is taken by the proper municipal authorities.</p>

<p>Writ op Error to reverse a judgment of the Superior Court in New London County, Case, J.; plea in abatement by the defendant, to which the plaintiff demurred.</p>

Action to recover damages, under the laws of New York, for negligence causing the death of the plaintiff’s intestate, brought to the Superior Court in New London County and tried to the jury before Reed, J.; verdict for the plaintiff for $4,000, which the trial court set aside as excessive after the plaintiff had refused to accept $1,000 damages, from which action the plaintiff appealed.

<p>Information for stealing copper wire, brought to the Superior Court in New London County and tried to the jury before Ralph Wheeler, J.; verdict and judgment of guilty, and appeal by the accused.</p> <p>The information contained but one count, and charged the accused with the theft of 312 copper bond-wires of the value of $258, of the goods and chattels of the New York, New Haven and Hartford Railroad Company.</p> <p>It was an undisputed fact upon the trial that that company was the lessee, under a lease for the term of one hundred years beginning in 1869, of a steam railroad owned by the Norwich and Worcester Railroad Company, and that it was operating it as a steam railroad at the time of the alleged theft. It was also undisputed that in 1906 or early in 1907, the ends of the rails upon that portion of the track which extends from Jewett City to Plainfield had been connected by bond-wires, consisting of small copper wires twisted into a cable, the ends of the cable being pressed into holes in the ends of the rails by hydraulic pressure so as to form a union of the metals. These connections were made by the Consolidated Railway Company, another corporation, for the purpose of adapting the track to be used for trolley or electric cars by that Company in connection with its use by the lessee company as a steam road, and it was in such use at the time of the alleged theft. The materials used in making these connections were furnished by the New York, New Haven and Hartford Railroad Company upon requisition made by the Railway Company.</p> <p>Under the terms of its lease the New York, New Haven and Hartford Railroad Company was bound to keep and maintain the leased railway, its road-bed, bridges, grounds, etc., in as good order and repair as when received, and to renew property worn out or destroyed by use, accident, design, or removal, and at the expiration of the lease to surrender the railroad and other property and the renewals and substitutions of the same in as good condition as when received.</p> <p>The State claimed to have proved upon the trial that on the night of March 19th, 1907, one Gertz, assisted by a man named Lewis, severed 312 of the bond-wires from the rails, placing them in a heap upon the railroad’s right of way, and left them there; and that during the morning of March 20th, they returned with a team, carried off the wire and sold it to the defendants in Norwich, and that the latter purchased and concealed it with knowledge that it was stolen.</p> <p>The State offered evidence to prove that the wire so stolen and received weighed 702 pounds, and that its market value as junk was twenty cents per pound, or $140.40 in all, at the time it was stolen. No other evidence as to its value was offered.</p> <p>Gertz was arrested in 1908, charged with the theft of the bond-wire and pleaded guilty. The defendants were also arrested and presented before the City Court of Norwich upon the charge of receiving the bond-wire from Gertz knowing it to be stolen property. The stolen property was described as of the value of $100 in the complaint upon which they were presented. They were found not guilty by the City Court and discharged, the court also finding that it was a case in which if they were guilty no greater punishment ought to be imposed than could lawfully be imposed by that court.</p> <p>Subsequently the defendants were arrested upon a bench warrant issued by the Superior Court upon the present information, which was filed by the State’s Attorney. The defendants pleaded the acquittal in the City Court in bar of the prosecution of this information. The State demurred to this plea, and the demurrer was sustained.</p> <p>The defendants, upon their plea of not guilty, claimed and offered evidence to prove that they did not buy or receive the bond-wires of Gertz, or have any transaction with him, or know of the theft, and that this prosecution was inspired by Gertz and his wife because the defendants, after the arrest of Gertz, had refused, when applied to by his wife, to furnish.bonds for his appearance for trial. After they had offered evidence to prove that the wife had requested them to become sureties for her husband, and that she had threatened that if they did not she would inform against them, the State, against the objection of the defendants, was permitted to offer Gertz as a witness, ■who testified that prior to the claimed threat of his wife he had confessed to the theft and signed an affidavit implicating the defendants in the transaction.</p> <p>The defendants claimed that the bond-wires, after they were attached to the rails, became a part of the real estate and belonged to the Norwich and Worcester Railroad Company; that as real estate they were not the subject of larceny; that they were improperly described in the information as the property of the New York, New Haven and Hartford Railroad Company; and that there was a fatal variance in these respects between the proof and the allegations of the information. Requests to charge bearing upon these claims were made to the court.</p> <p>The jury returned a verdict of guilty against each of the accused, after which the court said to them: "Gentlemen, you are excused until next Wednesday morning at ten o’clock.” All the jury except one then left the court-room and the court-house. In a few minutes it was discovered that the jury had not been inquired of as to the value of the property. The court thereupon instructed the sheriff to send his deputies at once to reassemble the jury, and in about two hours the jurors were again present in the court-room. Under instructions from the court, the clerk then asked the jury whether, before reporting their verdict, they had agreed upon and found the value of the property. They replied that they had. They were then asked what they found the value to be, and replied $140.40. The defendants objected to these inquiries being put and excepted to it. They afterward made a motion in arrest of judgment, upon the ground that this proceeding was invalid and that there was no verdict in the case upon which a valid judgment could be rendered. The motion in arrest was overruled.</p> <p>The court’s action in sustaining the demurrer to the plea in bar, in overruling the motion in arrest of judgment, in admitting the testimony of Gertz, and in neglecting to charge in accordance with the defendants’ claims as to the character of the wire as real estate, as to its ownership, and as to the variance between the proof and the allegations of the information, are assigned as error by the defendants.</p>

Information for a violation of the law relating to the practice of dentistry, brought to the Criminal Court of Common Pleas in New London County and tried to the jury before Waller, J.; verdict and judgment of guilty, and appeal by the accused, There were originally two counts in the information, but a nolle was entered as to the second count. The first count only is here involved.

Action by an assignee of a claim for work and labor done and material furnished pursuant to contract, brought to and tried by the Court of Common Pleas in New London County, Waller, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.

Action to recover the statutory penalty for wrongfully cutting trees on land of the plaintiff, brought to the Court of Common Pleas in New London County and tried to the jury before Waller, J.; verdict and judgment for the plaintiff for $500, and appeal by the defendant.

<p>Plea in abatement to an appeal taken to this court by the plaintiff from the refusal of the Court of Common Pleas in Litchfield County, Welch, J., to set aside a judgment of nonsuit in an action for breach of contract. The appellant filed an answer to the plea to which the appellees demurred.</p>

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate and the loss of his horses and wagon, alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Litchfield County and tried to the jury before George W. Wheeler, J.; verdict and judgment for the plaintiff for $5,335, and appeal by the defendant.

Appeal by the defendant from a decision of the Hon. George W. Wheeler, a judge of the Superior Court, holding null and void a liquor license vote cast by the voters of the town of New Hartford at its annual town meeting in October, 1909.

Action by the payee against one of the indorsers on two promissory notes, brought to and tried by the Superior Court in Middlesex County, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff for $16,000, and appeal by the defendant. The complaint contains two counts. Paragraph 1 of the first count alleges an indebtedness to the plaintiff from the defendant upon the following note, attached to said paragraph as an exhibit:— “$8,000.00.

Ailing of Orange, deceased, and ordering distribution accordingly, taken to and tried by the Superior Court in New Haven County, Curtis, J., upon a demurrer to the reasons of appeal; the court sustained the demurrer and rendered judgment for the defendants, from which the plaintiffs appealed.

Action to quiet and settle the title to real estate, and for other equitable relief, brought to and reserved by the Superior Court in New Haven County, Williams, J., upon an agreed statement of facts, for the advice of this court upon questions stipulated by counsel pursuant to §§ 70, 71 of the rules of this court.

Action of interpleader to determine the rights of the respective defendants in and to the sum of $50,000 derived from a sale of real estate which had been made pursuant to agreement of all the parties, brought to and tried by the Superior Court in New Haven County, Curtis, J.; facts found and judgment rendered in favor of the defendants Camp and McLanahan, executors and trustees, from which the other defendant, Phoenix, executor and trustee, appealed.

<p>The judicial interpretation placed by this court upon a will twenty-five years ago, under which property rights became vested and in conformity with which the estate has ever since been administered, will not be disturbed when the will is'again presented for construction, although different conclusions might be reached by the present members of the court upon some of the questions then decided, were they now presented for the first time.</p> <p>A testator who died in 1883 left a large property to trustees directing them to pay, out of the net income, $25,000 annually to his widow during her life, $5,000 annually to each of his five children during their lives, and $5,000 to each of his grandchildren as each became twenty-one; he directed that during the ten years following his death the income (subject to the foregoing payments) should accumulate, and that each year after the expiration of the ten-year period two thirds of the net annual income should be paid to his children then surviving in equal proportions, the “legal representatives” of each deceased child to be entitled to the share of such income that the decedent would have taken if living; and that the remaining one third of the income should accumulate as part of the trust estate. When his widow and children were all dead the trust was to cease, and all the property then constituting the trust fund was bequeathed to the testator’s grandchildren who might then be living, per capita, and in fee simple, but with a provision that if any grandchild died leaving a child or children surviving at the expiration of the trust, such child or children should take the share of his or their deceased parent, and if the deceased grandchild left no surviving child but did leave a widow, the latter should take one third of the share her husband would have taken had he been living. Upon a suit to determine the validity and construction of these provisions, this court, in 1885, advised the Superior Court that the annuity to the children was payable to the “family” of a deceased child during the continuance of the trust; that the gift of two thirds of the net income, after the lapse of the ten-year period, was in addition to, and not in lieu of, the $5,000 annuities to the children; that by “legal representatives” of deceased children was meant those who would take under the statute of distribution; and that the grandchildren living at the death of the testator, as a class which would open to let in those thereafter born, took a vested interest in the remainder of the testator’s estate. Changes in the family situation having occurred by reason of subsequent births, marriages and deaths, the present suit was brought by the trustees for additional light as to their duties. Held:—</p> <p>1. That by “family” the court intended that group of persons, whoever they might be, who at the time each payment became due represented the distributees of the deceased child’s intestate estate, and that such persons would take in the proportion indicated by the statute; and therefore that the widow of a deceased child, in the absence of lineal descendants, would be entitled to receive the entire amount of the annuity which the deceased husband had enjoyed; but that the surviving widows and husbands of those whose right to the annuity was substitutionary, were in that capacity excluded.</p> <p>2. That the fact that such interpretation would now be considered in violation of the then-existing statute of perpetuities, was not sufficient to override the clearly expressed intent of the former opinion, to which effect ought now to be given.</p> <p>3. That no annuitant acquired a property-right which was transmissible by will or descent, or one which was alienable for a longer period than his own life.</p> <p>4. That the annuities were not apportionable.</p> <p>5. That a right, alienable by deed or will and transmissible by descent, to one fifth of two thirds of the net annual income accruing after the termination of the ten-year period, vested in each of the four children of the testator then living, and in the “personal representatives,” namely, the widow and seven children, of the fifth child who died before the expiration of that period, the latter taking in the proportions specified by the statute of distribution; such construction finding reasonable support in the language of the will, and being the only one which would avoid the statute against perpetuities and at the same time accomplish results which were fair and impartial to all branches of the testator’s family.</p> <p>6. That the gift of the principal, upon the expiration of the trust, to the children of grandchildren who might have died during the continuance of the trust, or to the great-grandchildren’s widows, was void as against the then-existing statute of perpetuities, thus leaving undisturbed an absolute indefeasible estate in fee in the grandchildren.</p> <p>7. That the takers of a deceased child’s share would include widows and surviving husbands, as well as “heirs” more strictly speaking.</p> <p>In determining questions respecting the interpretation of a will which were not adjudicated in a former suit, this court will feel bound to recognize the statute of perpetuities and the construction which, as the result of repeated decisions, is now given to it.</p> <p>If a testamentary provision is fairly open to two constructions, one of which is in contravention of the law and the other not, the latter will be preferred.</p> <p>This court will not feel bound to follow an inadvertent expression in a former opinion, made during the discussion of an incidental matter and having no concern with any situation then before the court.</p>

Action to quiet and settle the title to a piece of land on Long Beach in the town of Stratford, brought to and tried by the Superior Court in Fairfield County, Gager, J.; facts found and judgment rendered for the defendants (without, however, adjudicating the title as between them), from which the plaintiffs appealed.

Action upon a policy of indemnity against loss and damage resulting from a strike of the plaintiff’s employees, brought to and tried by the Superior Court in New Haven County, Gager, Jfacts found and judgment rendered for the plaintiff for $29,449, and appeal by the defendant.

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

Action to recover damages for unlawfully appropriating for highway uses a narrow strip of land along the front of the plaintiffs’ premises, and for an injunction, brought to and tried by the Superior Court in Litchfield County, George W. Wheeler, J.; facts found and judgment rendered for the plaintiffs for $400 against the defendant town of Winchester, from which said town appealed.

Action against an upper riparian mill owner to recover damages for throwing sawdust, shavings, pom-ace and other refuse into the stream, thereby fouling the water, filling up the plaintiff’s mill-pond and injuring his mill, also for an injunction, brought to the Superior Court in Windham County where the equitable issues were tried to the court {Robinson, J.) and the legal issues to the jury before the same judge; verdict and judgment for the plaintiff for $150 damages, and…

Action for the appointment of a receiver to dispose of the balance of a stock of paints, wall-paper and painters’ and decorators’ supplies, alleged to have been purchased by the plaintiff and shipped to the defendants for sale at public auction as bankrupt stock, also for an accounting and other relief, brought to and tried by the Superior Court in Fairfield County, Burpee, J.; facts found and cause dismissed upon the ground that the contract made by the parties was opposed…

Information for manslaughter, brought to the Superior Court in Fairfield County and tried to the jury before Williams, J.; verdict and judgment of guilty, and appeal by the accused.

<p>Action to recover for alleged extra work and material in the erection of a building, brought to and tried by the Superior Court in Fairfield County, Burpee, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.</p>

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, brought to the Superior Court in Fairfield County.where the jury, in a trial before George W. Wheeler, J., returned a verdict for the plaintiff for $300 damages, which the trial court set aside as inadequate and against the evidence, and from this ruling the defendant appealed.

Information for embezzlement, brought to the Superior Court in Fairfield County and tried to the jury before Williams, J.; verdict and judgment of guilty on each of the five counts, and appeal by the accused.

Action to recover damages for personal injuries 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 Bennett, J., who directed a verdict for the defendant, from the judgment upon which the plaintiff appealed.

<p>Action by a real estate broker to recover a commission for obtaining a purchaser of the defendants’ property, 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 $746, and appeal by the defendants.</p>

Action to recover money paid under an alleged mistake of fact, brought to and tried by the City Court of New Haven, Tyner, J.; facts found and judgment rendered for the plaintiff for $44.70, and appeal by the defendant.

Action to recover damages for assault and battery, brought to the Court of Common Pleas in New Haven County and tried to the jury before Simpson, J.; verdict and judgment for the plaintiff for $275, and appeal by the defendant.

<p>A defendant who fails either to plead, as a defense, the fraud disclosed by the evidence during the trial, or to make any attempt to reopen the case for that purpose after the necessity for such a plea had been made apparent through the decision of the trial court, is in no position to ask for a new trial upon the ground of inadvertent mispleading; especially if it also appears from the allegations of his own petition that he not only took issue with the court on the original trial as to the necessity of filing such a plea in order to avail himself of the facts constituting the alleged fraud, but also pursued his contention, though unsuccessfully, on appeal to this court. Under such circumstances, neither the terms of the statute (§ 815) nor the policy of the law warrant the indulgence of a new trial.</p>

<p>Petition for a new trial upon the ground of newly-discovered evidence, brought to and tried by the Court of Common Pleas in New Haven County on demurrer to the complaint; the court, Simpson, J., sustained the demurrer, disallowed a proposed amendment of the complaint, and rendered judgment for the defendant, from which the plaintiffs appealed.</p>

Application by a divorced husband for a modification of the original order respecting the custody and education of the two minor children of the parties, contained in the decree of divorce, brought to and tried by the Superior Court in Fairfield County, Burpee, J facts found and judgment rendered modifying the original order, from which the divorced wife appealed. Mrs. Yon Romberg was formerly the wife of the petitioner, Walter C. Morrill.

Application in the nature of an appeal from the refusal of the board of relief of the town of Essex to reduce the valuation placed by the assessors on the plaintiff’s property, brought to and tried by the Superior Court in Middlesex County, Bennett, J.; facts found and judgment rendered making only a slight net reduction in the valuation of the property of the plaintiff, from which he appealed.

Suit to restrain the defendants from crossing the premises of the plaintiff and from tearing down her gates and fences, brought to and tried by the Court of Common Pleas in Litchfield County, Welch, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants.

Action by a husband and wife to recover damages for personal injuries sustained by her and for the consequential injury to him through the loss of her services and society, alleged to have been caused by the wilful and unlawful acts of the defendant, brought to the Superior Court in Litchfield County and tried to the court, Gager, J., upon a demurrer to the complaint; the court sustained the demurrer and rendered judgment for the defendant, from which the plaintiffs appealed.

Suit to foreclose a judgment lien and to have certain conveyances set aside as fraudulent and void against the plaintiff, brought to the Superior Court in Tolland County where a demurrer to the complaint was overruled (Ralph Wheeler, J.) and the cause was afterward tried to the court, Case, J.; facts found and judgment rendered for the plaintiff, from which the defendants appealed.

<p>Appeal by the plaintiff from an order and decree of the Court of Probate for the district of Hartford adjudging her to be an incompetent person and appointing a conservator over her and her estate, taken to and tried by the Superior Court in Hartford County, Burpee, J.; facts found and judgment rendered for the plaintiff, from which the defendants appealed.</p>

Action by the payee of a bank check against its maker, brought to and tried by the Court of Common Pleas in Hartford County, Coats, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Suit to determine the validity and construction of the will of John E. Law of Cheshire, deceased, brought to and reserved by the Superior Court in New Haven County, Williams, J., upon the facts stated in the complaint, for the advice of this court.

<p>Action to restrain the defendant from cutting trees on land alleged to be owned by the plaintiff, brought to and tried by the Superior Court in Windham County, Gager, Jfacts found and judgment rendered for the plaintiff, from which the defendant appealed.-</p> <p>The several lots of land to which reference is made in the opinion are shown upon the plan on the opposite page.</p> <p>The plaintiff owns the “Turgeon lot” within the lines between the points E.F. A. and G. Weaver owns the “Weaver lot” within the lines between the points D. E. H. and C.; and the defendant owns the tract of land to the east of the Turgeon and Weaver lots.</p> <p>The plaintiff contends that the line A. B. is the</p> <p> </p> <p>boundary line between him and the defendant; while the defendant insists that A. G. is the boundary line.</p> <p>The parties concede that this boundary is to be fixed by finding whether the point B. or G., as shown upon said plan, is the true southeast corner of the plaintiff’s lot which was conveyed originally by Young to Gould, both being predecessors in title to the plaintiff.</p> <p> The trespasses complained of were upon the tract in-eluded within the lines between the points A. B. and G. </p>

Writ of habeas corpus to determine the legality of the plaintiff’s imprisonment, brought to the Superior Court in New London County where a demurrer to the defendant’s return was overruled {Shumway, J.) and judgment rendered for the defendant, from which the plaintiff appealed.

<p>Application for a writ of mandamus requiring the respondents, as school committee of the town of Waterford, to restore the relator to membership on said committee, brought to and tried by the Superior Court in New London County, Greene, Jfacts found and judgment rendered for the defendants, from which the relator appealed.</p> <p>At the annual town election in Waterford on the' first Monday of October, 1909, the relator was elected a member of the school committee, and accepted said office and acted as such member until February 12th, 1910, when said school committee, acting under chapter 146 of the Public Acts of 1909, declared a vacancy to exist in the office held by the relator and elected one Saunders to the office, which he has since filled.</p> <p>The relator was domiciled in Waterford for many years prior to the bringing of this action, and actually resided there until May 6th, 1909, when he moved to Montville with his family, intending to return upon the happening of an event expected shortly, though uncertain in time.</p>

<p>The defendant made compressed air at its plant in Preston and by means of underground pipes transmitted the greater portion of it to the adjoining town and city of Norwich, where it was sold and used for power and other purposes. The company was located in Norwich, and its charter provided that its property should be listed there for taxation at a sum equal to one and a half times the gross earnings of its business done in that town during the preceding year, but in no event at less than $100,000; and that it should also be listed in the town of Preston at a sum equal to one quarter of the gross earnings of its business done in both towns during the same period, but at not less than $15,000. The plaintiff assessed the plant situated in Preston, “including the water-power,” at $75,000, alleging that to be its fair market value, and sought to recover taxes on that amount, although it appeared from the averments of the answer, which recited the foregoing charter provisions, that the gross earnings from the business done in both towns during the time in question was less than $15,000. On demurrer to this defense it was held:—•</p> <p>1. That it was competent for the legislature to determine the situs of the defendant’s property for purposes of taxation, and to provide for a fair and proper apportionment, between the towns, of the tax which the defendant should pay; and that, so far as the record disclosed, this was the sole purpose of the Act in question.</p> <p>2. That inasmuch as the plaintiff’s assessment of $75,000—which was single and entire—covered the water-power, although that was taxable, under General Statutes, § 2345, in the town of Norwich where it was utilized, it could not be said upon demurrer, and in the absence of any hearing upon the facts, that the balance of the defendant’s property in Preston was not adequately and fairly represented by an assessment of $15,000; and therefore the plaintiff’s contention, that the charter exempted the defendant’s property in Preston from taxation in whole or in part, and thus was in violation of Article Pirst, § 1, of the Constitution of this State in granting “exclusive public emoluments or privileges,” was not maintainable.</p> <p>A court will take judicial notice of the fact that air may be compressed by the force of falling water without the intervention of a waterwheel, and that the water-power may be used at a distance through the medium of the air when so compressed.</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 defendant’s negligence, brought to the Superior Court in New London County and tried to the jury before Case, J.; verdict and judgment for the plaintiff for $4,000, and appeal by the defendant. In this court the plaintiff and appellee filed a plea in abatement to the defendant’s appeal as originally taken and as subsequently amended.

Suit to restrain the defendants from injuring or interfering with the poles, wires and fixtures of the plaintiff’s electric power transmission line, brought to the Superior Court in Litchfield County where a demurrer to two of the defenses in the answer was overruled (Ralph Wheeler, J.) and the cause was afterward tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiffs, from which all parties appealed.

Information for theft of copper ingots, brought to the Superior Court in New Haven County and tried to the jury before Shumway, J.; verdict and judgment of guilty, and appeal by the accused.

<p>A street-railway company in April, 1905, adopted a definite layout and location of its railway, which included about one tenth of an acre of the south end of the plaintiff’s house-lot, and built and operated its road in conformity thereto. No approval of this layout by the railroad commissioners was ever requested or given, nor did the directors of the company ever vote to take, nor did they otherwise seek to condemn, any of the plaintiff’s land except as hereinafter stated. In October, 1907, without voting to extend or enlarge the original location of its road, the directors of the company voted to take twenty-two hundredths of an acre of the plaintiff’s land, which in fact included the aforesaid one tenth, applied to the railroad commissioners to approve a layout of the railway over such land and also the taking of the land for railway purposes, and obtained their approval accordingly. Upon the plaintiff’s appeal to the Superior Court the railway company did not contend that it was entitled to have the orders of the railroad commissioners confirmed as applicable to the twenty-two hundredths of an acre, but insisted that they were legal and valid as approvals of the location upon, and the taking of, the one tenth of an acre.. Held that this contention was properly overruled: that a decision that it was necessary and proper to take twenty-two hundredths of an acre was by no means, and as matter of law, a decision that a lesser amounit would be sufficient for the purpose, even had the railroad commissioners been expressly asked to approve the taking of the smaller quantity; and that inasmuch as the defendant itself had found the smaller quantity insufficient and had never voted to take it, the railroad commissioners might well have denied the application had it sought their approval of a taking of that amount.</p> <p>The charter of a street-railway company, after describing the highway route upon which the railway might be constructed, “further authorized and empowered” the company to build “upon any private property which it has or may acquire near to the route mentioned herein.” Held that a location of the road over private property, which shortened the distance, several hundred feet and was at no point more than two hundred and fifty feet from the highway, was authorized by the charter, notwithstanding it might become necessary to “acquire” such property by condemnation proceedings, as the company was empowered to do by its charter.</p>

<p>Suit to enjoin the defendant from maintaining its dams and diverting the waters of Beaver Brook and its tributaries, and for damages, brought to and tried by the Superior Court in New Haven County, Robinson, Jfacts found and judgment rendered for the defendant, and appeal by the plaintiff.</p> <p>Beaver Brook is a nonnavigable watercourse flowing into the Naugatuck River in Ansonia. The plaintiff owns a tract of land upon the river and near to the mouth of the brook, upon which is situated its factory, operated by it for manufacturing purposes, and requiring the use of considerable quantities of water for its operation. A short distance from this tract is another known as the Burns lot, which it also owns. The brook runs through this lot. In 1837 certain riparian owners farther up stream made a 999-year lease to A. and A. Smith, their executors, administrators, and assigns, of the privilege of digging and embanking a watercourse and carrying water through the same in such quantities as the lessees should from time to time determine, from a point on the brook covered by the lessor’s ownership through their land in a designated course to a small pond, which was then used, or came to be used, by the lessees in operating a factory at that point. The ditch was dug, its course being substantially parallel with the course of the brook, only a short distance therefrom, and approximately two thousand feet in length. This privilege was subsequently used to operate factories at the point stated until about 1873. Since 1877 the use of water in this mill-pond and on this factory lot has been abandoned. This ditch took practically all the water of the brook, except in times of flood, and diverted it to the mill site.</p> <p>One Hubbell later became the owner of this mill site and privilege, of all the land in any way connected with the privilege, and also of the Burns lot. While he was such owner, he, in 1869, by a conveyance duly recorded, granted to the defendant, its successors and assigns, “the right to have, take, use and appropriate the water of a brook, known as Beaver Brook, for the purposes specified in the charter of The Ansonia Water Company, aforesaid, and to conduct said water through the pipes of said water company from the reservoir of said water company into said borough of Ansonia for use and consumption.” To this grant was attached the condition that it should not be construed as authorizing the company to build a reservoir farther south than its present one. At the time of this grant the defendant had already constructed its original dam, known as No. 1, and the reservoir thereby created, and with Hubbell’s consent laid its pipes therefrom. The deed contained a release of all claim for damages arising from the laying of the pipes.</p> <p>In 1881 Hubbell, being still the owner of said premises and privilege, except as affected by the grant just recited, conveyed by deed to one Sehneller, whose rights, thereby acquired, subsequently passed to the plaintiff, “the perpetual right and privilege of taking water from Beaver Brook on the premises of and prior to the grantor and convey the same over said grantor’s premises to the premises of the grantee or his heirs, or assigns in a pipe or other conveyance with an outlet at said grantee’s premises of not over four inches square.” The premises of the grantor thus referred to are those of the old mill site.</p> <p>In 1883 Hubbell conveyed to Sehneller the old mill site, and the land connected therewith. In 1899 Schneller’s heirs conveyed that part of the property upon which the factories stood to other parties. In 1904 they conveyed the remainder of the land to the plaintiff, who in 1905 conveyed it away.</p> <p>In the spring of 1884 the plaintiff, acting under the authority of the grant of water-privilege to Sehneller, constructed a head-gate at a point substantially at the intake of the old ditch, and laid a pipe thence to its factory. There was no storage reservoir connected with these pipes. After they were laid the plaintiff used the water passing through them for its general factory purposes. This water supply was gradually discontinued, until at some time not later than 1900 its use was entirely abandoned. During that year a portion of the pipe was carried away by a freshet, and has never been replaced.</p> <p>In 1904 one Fosdick, the owner of a tract of land upon the brook below the intake of the old ditch, conveyed to the plaintiff a right to construct and maintain a dam across the brook, create a storage reservoir, and lay and maintain an eight-inch pipe from the dam across the grantor’s property. The same year the plaintiff, pursuant to this authority, constructed a dam and reservoir at the point named, and laid pipe-to its factory several hundred feet away. Since that time the plaintiff has used this dam, reservoir, and pipe to obtain a water supply for its factory.</p> <p>The defendant was incorporated in 1864 for the purpose of “supplying the village of Ansonia and vicinity with an abundant supply of pure water for public and domestic use.” To effectuate that purpose it has built and maintained across the waters of the brook in question four dams, and thereby created four reservoirs or storage basins. The first of these, already referred to, was constructed in 1868 and 1869. At that time a service outlet, through a twelve-inch pipe, was laid. This outlet, or one of like capacity, has remained to the present time, and until 1904 was the only connection between the reservoir and the distribution system. In 1904 a twenty-four-inch outlet pipe was laid by the side of the existing twelve-inch. This pipe connects with the distribution system a considerable distance away in the direction of the city.</p> <p>In 1886 the defendant built another dam, the third to be constructed, and known as the Filtration dam, approximately four hundred feet below No. 1, and thereby provided a storage basin of small capacity. This basin and the No. 1 reservoir, operated in close connection, comprise the defendant’s high-pressure system. The water which reaches the filtration basin comes in part from No. 1 reservoir and in part from a small watershed which naturally drains into the stream between the two dams. This has always been so. When the filtration dam was built, a twelve-inch pipe leading through a well-house was laid from its reservoir to the twelve-inch pipe from reservoir No. 1. In this way alone did water from the filtration reservoir reach the distribution system until 1904. At that time, the twenty-four-inch pipe having been laid from reservoir No. 1, the twelve-inch pipe from the filtration reservoir was connected with the twenty-four-inch pipe so that it was connected with both of the outlets from the first-named reservoir. Valves were placed at the connections so that they might be used at pleasure. The connecting pipe, however, which took the water from the filtration reservoir has always remained the original twelve-inch pipe. Prior to 1905 the entire water supply obtained from these two reservoirs was drawn from the filtration reservoir through the twelve-inch pipe leading therefrom, the waters of reservoir No. 1 being fed into the filtration reservoir as required. In 1905, the twenty-four-inch pipe having been installed, the connection therewith made, and the turning dam hereinafter referred to built, this supply has since been drawn directly from the No. 1 reservoir, and the connection with the filtration reservoir has been used on occasions only. For the purpose of conveying this water since the date last mentioned, the twelve-inch pipe has been regularly used. The larger pipe has been used only in case of fire, and then to increase the pressure. Electric connection from the company’s office enables the gate or valve to be opened from that point when the increased pressure is desired.</p> <p>In 1905 the defendant built a dam—not across the flow of the brook—which is known as the turning dam. Its location is in the small watershed, already referred to as naturally tributary to the filtration reservoir. It does not create a storage basin, and its only effect is to divert into No. 1 reservoir the water which it intercepts, which, without it, would reach the filtration reservoir. The amount thus intercepted and diverted is intermittent, and often none at all. The result of its existence .is that water which from 1896 to 1905 found its way into the high-pressure system through the filtration dam has since found its way into the same system through reservoir No. 1, and that thus the same supply of water from the same sources has been continuously used ever since 1886, by the one method or the other. The dam across the brook which was built second in order of time is the so-called Quillinan dam, located some mile and a half lower on the stream than the filtration dam, and constructed in 1883, and rebuilt in 1884. This is the lowest down of all the defendant’s constructions, and is more than half a mile above the intake of the old water-privilege of 1837. The reservoir thereby created, and the mains and pipes therewith connected, constitute the defendant’s low-pressure system. The service outlet from this reservoir has always been one of eight-inch capacity and there has been no increase in the amount of water diverted over that which immediately followed the building of the dam.</p> <p>In 1895 the defendant built a dam farther up stream than the No. 1. This is called the Peat Swamp dam, and creates a reservoir of large capacity. Its purpose and use has been to furnish the main source of storage, so that water might be kept at the proper height in the distributing reservoirs. It stored the flood water which came down in rainy seasons, to be utilized in dry seasons. No means of distribution are connected with it except by way of the gate and brook through which the water is carried down to the reservoirs below.</p> <p>The storage capacity of the several reservoirs is as follows:—</p> <p>No. 1 reservoir . . . 23,000,000 gallons.</p> <p>Quillinan reservoir . . 33,000,000 gallons.</p> <p>Filtration reservoir . . 500,000 gallons.</p> <p>Peat Swamp reservoir . . 175,000,000 gallons.</p> <p>In 1884, after the construction of the Quillinan dam, the Sperry Manufacturing Company, the owner of riparian land below the dam and above the intake of the old ditch, and the operators of a factory situated thereon, the power for which was derived from the waters of the brook, granted to the defendant, by deed duly recorded,' all its right and interest in and to those waters above said dam, and the right and privilege to forever maintain the same and to divert the waters of the brook above that point. In consideration of this grant, the defendant agreed to supply water for the wheel of the Sperry factory, in such quantities as one of its then capacity required, during the working hours of two hundred and twenty working days, ten hours a day, of each year, reckoning from July 1st, or in default thereof to pay $5 a day for each day less than that number. For the first twelve years after the execution of this instrument the defendant paid for days in default in all years save four, and the number of days each year for which payments were made ranged from fifteen to seventy-three. In only four of the twenty-four years from 1884 to 1908 has the Sperry plant been supplied for a greater number of days than two hundred and fifty-one. For the first fifteen years the average was two hundred and four days, while for the remaining nine it was two hundred and fifty days.</p> <p>The situation resulting from this Sperry contract led the defendant to its operations upon and in connection with the so-called Parker Brook. This flow of water enters Beaver Brook below the Quillinan dam and above the Sperry plant. The conclusion of the court as stated in its memorandum of decision, made a part of the finding for that purpose, is that the plaintiff failed to support its allegation that it was a stream of any kind. All that the finding itself discloses is that this so-called brook is simply a ditch dug through a natural embankment for the purpose of draining a swamp whose natural drainage was in a different direction. The defendant in the spring of 1906 built a dam across this ditch, and thereby created a storage basin covering a swamp. The water thus stored it has held in captivity to be released as might be desired in the furnishing of the Sperry plant the water required by its contract. It was not otherwise used. The facts found as to the manner in which this water was used are sufficiently stated in the opinion.</p>

Action to recover money loaned, brought to and tried by the Superior Court , in New Haven County, Shumway, J., after a demurrer to the second defense had been sustained (Curtis, J.); facts found and judgment rendered for the plaintiff for $1,600, and appeal by the defendant. No error.

<p>An imperfect, argumentative form of statement in a complaint is waived by pleading a general denial and going to trial thereon.</p> <p>The relation of master and servant does not imply a knowledge and assumption by the latter of extraordinary risks, that is, risks that are not ordinarily incident to the employment in which the servant is engaged; and therefore in an action to recover damages for personal injuries resulting from such a risk and alleged to have been caused by the master’s negligence, the servant is not required to aver and prove that he had not assumed them, or had no knowledge of them, in order to make out a prima facie case. In such cases it is for the master to show knowledge and assumption of the risk on the part of the servant.</p> <p>The necessarily dangerous nature of the work in which a servant is engaged does not relieve the master from his legal obligation to use reasonable care to make the place reasonably safe in view of the character of the undertaking and the results to be accomplished.</p> <p>Having correctly stated this obligation, the trial court in refusing a request of the defendant master, said to the jury that it was the defendant’s duty to keep the underground tunnel, in which the plaintiff’s intestate was at work and which caved in and killed him, in as safe a condition as he could consistently with a reasonable and practicable carrying on of the work there. Held that this must have been understood by the jury as describing the conditions in the tunnel which the defendant should use reasonable care to maintain, and that as so understood the instruction was correct, or, if incorrect, that it could not have harmed the defendant.</p> <p>In the present case the plaintiff’s intestate, a laborer, was suffocated and killed by the caving in of an underground tunnel which was being constructed by the defendant, and whose negligence in failing to timber the sides and roof, and to discover its dangerous condition, was alleged to have been the cause of the accident. The plaintiff contended that these defective conditions were not ordinary risks of the intestate’s employment and were not assumed by him, while the defendant insisted to the contrary. Held that the trial court, having correctly instructed the jury in reference to these claims, properly left it to them to determine whether these defects were the ordinary hazards of tunnel building, and if not, whether, as extraordinary risks, they had been assumed by the intestate.</p> <p>Before a witness can properly be permitted to testify that another “knew” of certain conditions, it should at least appear that the foundation for his testimony is something more substantial than mere opinion or hearsay; and the mere fact that if the testimony proves upon cross-examination to be unfounded, or to rest upon hearsay, it can be stricken out, is immaterial.</p> <p>It is not competent, as a general rule, for an expert witness to state his opinion unless the facts upon which it is based appear either in his own testimony or in the question put to him.</p> <p>An expert witness having given his opinion that the conditions he observed in heading No. 2 of the tunnel, which subsequently caved in, were safe for work, provided no blasting was done there, was asked whether in his opinion it was proper to keep men at work in heading No. 3 where the intestate was killed. Upon objection this question was excluded. Held that if the propriety of keeping men at work in heading No. 3 depended entirely upon the safety of the conditions in heading No. 2, the defendant had the benefit of the witness’ opinion; and if it depended upon other facts they should have been stated.</p> <p>The plaintiff alleged that as heading No. 2 suddenly caved in, an immense amount of water and quicksand rushed into the tunnel and filled it with sand, rocks and refuse. Held that it was immaterial whether the sand above the heading was technically quicksand or not, inasmuch as all witnesses agreed that it would run in water and was commonly called “quicksand;” and therefore an inquiry as to the common test of quicksand was properly excluded.</p> <p>Remarks of counsel which are outside of the issues and evidence in the case and made for the apparent purpose of exciting the sympathy and prejudices of the jury, cannot be too strongly condemned. Such conduct is in violation of the attorney’s duty to the court, to his professional brethren, and to his client. But the punishment due him ought not to be visited upon his client, if, in view of the rebuke administered by the trial court, the disclaimer of associate counsel, the amount of the verdict, and all the other attendant circumstances, it is apparent that the jury were not misled or prejudiced by such misconduct.</p>

<p>Suit to determine the validity and construction of the will of Caroline E. Blake of New Haven, deceased, brought to and reserved by the Superior Court in New Haven County, Williams, J., upon the facts alleged in the complaint and admitted by the answers, for the advice of this court.</p>

Action to recover the balance of the purchase price of a horse sold by the plaintiff to the defendant, brought by appeal from the judgment of a justice of the peace to the Court of Common Pleas in Fairfield County and tried to the court, Scott, J.; facts found and judgment rendered for the plaintiff for $39, and appeal by the defendant. The plaintiff brought suit to recover the balance of the purchase price of a horse.

<p>Chapter 257 of the Public Acts of 1909 provides that an applicant for a liquor license whose application is refused by the county commissioners, may, within ten days thereafter, appeal to the Superior Court “to the next return day, or to the next but one, to which it can be made returnable.” Held that the date of the refusal, and not the date upon which the appeal therefrom was taken, was the point of time from which the next return day or the next but one was to be determined; and therefore an appeal to the third return day after the denial of the application was abatable as not seasonably taken.</p>

Suit to enjoin the principal defendant, a New York corporation, from establishing further branches of its order in this State under the name or title of “Daughters of Isabella,” and restraining all subordinate branches now in existence in this State from continuing to use said name or title, brought to the Superior Court in New Haven County where a demurrer to the complaint was overruled (George W. Wheeler, J.) and the cause was afterward tried to the court, Burpee, J.;…

Action to recover money paid by the plaintiff as surety on a bail bond given by him at the request and upon the oral promise of the defendant to reimburse him for any loss he might sustain by reason of becoming such, brought to the Court of Common Pleas in New Haven County and tried to the court, Wolfe, J., after a démurrer to the complaint had been overruled; judgment for plaintiff, and appeal by the defendant.

Writ op error to reverse a judgment of the Superior Court in and for Fairfield County, Reed, J., awarding a fund, theretofore paid into court, to certain of the respondents and claimants in an action of inter-pleader.

Cox of Norwalk, deceased, taken to the Superior Court in Fairfield County and tried to the jury before George W. Wheeler, J.; verdict and judgment sustaining the will, and appeal by the plaintiff for the refusal of the trial court to set aside the verdict upon the ground of improper conduct upon the part of defendants’ attorney.

Action to recover the amount claimed to be payable under a policy, of accident insurance, brought to and tried by the Superior Court in Fairfield County, Curtis, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action by a father to recover damages for loss of the services of his minor son, and for moneys expended for medicines and medical attendance on his behalf, in consequence of personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in New Haven County where a verdict was directed (Shumway, J.) for the defendant, from the judgment upon which the plaintiff appealed.