Volume 86 — Connecticut Reports

<p>Action for breach of contract, brought to- and tried by the Superior Court in New Haven County, Bur-pee, J.; facts found and judgment rendered for the plaintiffs for $959, and appeal by the defendant.</p>

Action for malicious prosecution, brought to and tried by the Superior Court in New Haven County, Curtis, J.; facts found and judgment rendered for the plaintiff for $250, and appeal by the defendant.

Action by a tenant against his landlord to recover damages for injuries to the former’s property alleged to have been caused by the latter’s neglect to keep the leased premises in repair in compliance with Ms covenant in the lease, brought to the Court of Common Pleas in New Haven County and tried to the jury before Wolfe, J.; the trial judge denied defendant’s motion to set aside a verdict for the plaintiff for $376, and rendered judgment for that sum, and the defendant…

Action on a fire insurance policy to recover for the total destruction of plaintiff’s stock of merchandise and store fixtures, brought to the Superior Court in New London County and tried to the jury before Greene, J.; verdict and judgment for the plaintiff for $985, and appeal by the defendant.

Action upon the common counts for goods sold and delivered, brought to the Superior Court in Hartford County and tried to the jury before Reed, J.; verdict and judgment for the plaintiff for $432.31, and appeal by the defendants.

<p>An oral lease not to be performed within one year from the making thereof is void as contravening the statute of frauds.</p> <p>If a tenant holds over under a new lease which is void, his tenancy is not one created by the lease, although it may be one which the law will imply.</p> <p>In a summary process action against such a tenant, the defendant having alleged in his answer only possession under the void lease, a demurrer to such answer should be sustained; whereas if facts showing a tenancy created by law had been contained in the answer, it would have withstood the demurrer.</p> <p>Although § 1087 of the General Statutes, as amended by chapter 104 of the Public Acts of 1907, makes provision for writs of error by defendants in summary process cases, and makes no reference to writs of error by plaintiffs, the plaintiff in such a case has a right to sue out such a writ under General Statutes, § 817.</p> <p>Whether the defendant, if he fails to procure his writ of error within forty-eight hours, as provided in General Statutes, § 1087, as amended by chapter 104 of the Public Acts of 1907, may not procure his writ of error within the three years allowed in other cases, gucere.</p>

; facts found and judgment rendered dismissing the appeal and affirming the order of said commissioners, and appeal by the plaintiff.

Action to recover damages for injuries to the horse and wagon of the plaintiffs through the alleged neg- ligence of the defendant in not maintaining a guardrail or barrier upon the side of the highway at the place of the accident, brought to the District Court of Waterbury where a demurrer to the complaint was sustained {Meigs, Deputy-Judge) and judgment rendered for the defendant, from which the plaintiffs appealed.

Infokmation in the nature of quo warranto to determine the title to the office of health officer of the city of Waterbury, brought to and reserved by the Superior Court in New Haven County, Ralph Wheeler, J., upon an agreed finding of facts, for the advice of this court. The charter of the city of Waterbury as approved June 22d, 1895, contained the following sections:— “Sec. 109.

Action against a real-estate broker for deceit in the sale of land, brought to and tried by the Superior Court in New Haven County, Curtis, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Information in the nature of quo warranto to determine the title to the alleged office of clerk of the board of education of the city of Waterbury, brought to and tried by the Superior Court in New Haven County, Gager, Jfacts found and judgment rendered dismissing the information, and appeal by the relator. The respondent was, in January, 1910, elected by the board of education — consisting of seven members — its clerk, to serve during the pleasure of the board.

<p>A railroad company does not hold goods in the capacity, and subject to the special liability, of a common carrier, until there has been a complete delivery of the goods for immediate transportation.</p> <p>In the present case a theatrical company engaged a car to transport their scenery and properties, including two ponies, on a certain train which was to leave Monday morning, and on Saturday the owners loaded all their goods, except the ponies, on a car, which the railroad company then moved to a convenient place for loading the ponies, and it was understood by both parties that the ponies would not be loaded until Monday morning. On Sunday the goods •were destroyed by fire, without negligence of the railroad company. Held that the responsibility, of the railroad company for the goods as a common carrier had not attached, and that it was not liable for the loss.</p>

<p>It is for the jury to determine the credibility of witnesses and the weight and effect to be given to conflicting testimony.</p> <p>It is within the province of the trier, whether judge or jury, to infer facts from those already found, upon which an ultimate conclusion may rest in whole or part. In jury trials, if the court, in the light of the evidence as weighed by its experience and knowledge of events, finds that there is any probability or presumption which would lead reasonable men, reasoning logically, to draw such inference, it should leave the ultimate question to the jury. If none such exists, such question should be withdrawn from their consideration.</p> <p>The plaintiff’s intestate, a street-railway conductor, was killed in consequence of the derailment of his car. It was claimed, among other alleged acts of negligence, that the derailment was due to the defendant’s negligence in permitting the use of a car with a flat wheel. There was conflicting evidence as to whether the car had a flat wheel, and uncontradicted evidence that a flat wheel might have caused the derailment. The court instructed the jury that there was nothing in the case which would permit them to find that the flat wheel had anything to do with the accident. Held that, since the jury might have found that the car was equipped with a flat wheel, and that this defect might have caused the derailment, and since it was logically possible to infer from these facts the further fact that the flat wheel did cause or tend to cause the derailment, it was error for the trial court to withdraw from the jury this alleged ground of negligence.</p> <p>The plaintiff also claimed that the defendant was negligent in permitting the car to be operated over a track having a switch, at or near the place of the accident, and a groove in which the flanges of the wheels ran, which groove had become full of dirt, ice, and snow. There was no evidence in the case of any rule of the defendant or any duty which imposed an inspection of the switch and rails upon the conductor. The court charged the jury, in effect, that they might find that it was the duty of the deceased to inspect or clear the switch at the time and place of the accident. Held that it was error so to charge in respect of a duty so foreign to the ordinaiy duties of-a trolley-car conductor without some definite proof of the existence of the specific duty.</p> <p>An instruction as to the assumption of the ordinary and extraordinary risks of an occupation should include an explanation of what would in law constitute an ordinary and what an extraordinary risk.</p> <p>A charge that no recovery could be had if the risk which befell the deceased was an extraordinary one, of which he knew and which he voluntarily assumed, was too narrow. The court should have said that if the jury found the risk to be an extraordinary one there would be no assumption of it unless the intestate voluntarily continued in the defendant’s service after that risk was known to and comprehended by him.</p> <p>An objection to a question as to a witness’ former statement in his testimony before the coroner, upon the ground that it did not quote the coroner’s testimony, belongs to that class of objections whose use too often clogs trials, distracts the attention of the trier, and serves no useful purpose. Such an objection was improperly sustained. But this error would not require the granting of a new trial, since •there was nothing in the record to indicate that it had prejudiced the plaintiff’s rights.</p>

<p>Suit to determine the construction of the will of Mary P. Root, late of Bristol, deceased, brought to and reserved by the Superior Court in Hartford County 0Curtis, J.), upon the facts alleged in the complaint and found true by the court, for the advice of this court.</p> <p>The testatrix, a spinster, died August 27th, 1907, in consequence of an accident resulting from the collision of an automobile in which she was riding and a railroad train. She survived in an unconscious condition four days. In the same accident her mother, Catherine R. Root, her aunt Candace E. Roberts, and her brother, Charles J. Root, were instantly killed. Before this event, the testatrix was possessed of an estate of approximately $10,000, and her only apparent prospect of its increase was such as might arise from the death of some relative. As a result of the mother’s death, there came to her estate a little over $7,000, the avails of the sale of realty. Charles left a will, by which he gave to the testatrix one hah of his estate, consisting of both realty and personalty, of the value of about $95,000. As the result of these two accretions, Miss Root’s estate amounted to about $110,000.</p> <p>_ She left a will, duly probated, of the following tenor: “I give, devise, and bequeath all my property, real and ‘personal, in possession or in remainder, to my brother, Charles J. Root, in trust to safely keep and invest the same for the uses and purposes following:</p> <p>“1. During the lifetime of my aunt, Candace E. Roberts, to pay to her the income thereof, or so much of said income as in his judgment will insure her comfortable support.</p> <p>“2. After her death, the income is to be allowed to accumulate for the purpose of giving to each of the children of my brothers a collegiate education. Whenever the oldest of said children shall be prepared to enter upon a collegiate course, the trustee shall appropriate to and use for his or her education so much of the accumulated and current income as in his best judgment will insure to said eldest child equality in the benefit of said fund with the younger child or children, the determination of the proportion and the expending thereof being wholly intrusted to the discretion of the trustee, according to all the circumstances then existing.</p> <p>“3. When the last of said children shall have completed their collegiate course, one-half of my estate shall go to my brother, Theodore C. Root, for life, the income thereof to be paid over to him as the same may accrue; and at his death leaving a child or children, said one-half of my estate shall go, in equal shares, to said.child or children, to be to them and their heirs forever; if my said brother Theodore shall die, leaving no children living at the time of his death, the one-half bequeathed to him shall go according to the provisions of the following paragraph.</p> <p>“4. The remaining half of my estate, together with the portion mentioned in the last clause of the preceding paragraph, I give, devise, and bequeath to my said brother Charles, and to his heirs forever in fee, if either he, or his child or children, are then living; but it is my desire, which I hereby state for his guidance (not making it an imperative limitation of his estate) that he should, in case of his own death without children, provide for the passing of the amount received by him from my estate to the Town of Bristol, to hold the same in trust for the establishment, maintenance, and support of a free, public library, using principal and interest for that purpose; and if my said brother Charles shall have died leaving no children before the completion of the trusts created in the second paragraph, or before the expiration of my brother Theodore’s life estate, then I give, devise, and bequeath the one-half interest otherwise going to said Charles from the residue, and also the one-half arising from the death of my brother Theodore without issue, to the Town of Bristol, for the uses and trusts above limited.</p> <p>“6. I hereby nominate and appoint my said brother Charles as executor hereof.”</p> <p>Charles left no children or legal representative of children. The testatrix had only one other brother, Theodore, who still survives at the age of fifty-seven, childless, and in feeble health. He had one child, a daughter, who died after the testatrix, leaving no child or descendants.</p> <p>The defendant city of Bristol has, by legislative action, succeeded to the rights of the town. The plaintiff, Pierce, is the duly appointed and qualified trustee in succession to Charles J. Root, named in the will. The defendant Newell is the administrator c. t. a. of the testatrix’s estate. He settled the estate, and turned over to the trustee $112,737.28. Since the trustee’s receipt of this fund, there has come into his hands income which he still holds.</p> <p>The plaintiff seeks advice in answer to the following questions: “ (1) Should the plaintiff allow the income of said estate to accumulate for the purpose of giving a collegiate education to children that may possibly hereafter be born to said Theodore C. Root? (2) Should the plaintiff pay over to said Theodore C. Root one-half of the income of said estate as the same may accrue? (3) What disposition should the plaintiff make of the remaining one-half of said income? (4) What disposition should the plaintiff make of the one-half of said estate given to Charles J. Root in the fourth item of said will? (5) Is the whole or any part of said estate intestate? ”</p>

Action to recover damages for false representations in the sale of violins, brought to the Superior Court in New Haven County and tried to the jury before Bennett, J.; verdict for the plaintiff for $2,027, which, upon motion of the defendant, the court set aside as against the evidence, and the plaintiff appealed.

Suit upon a note, brought to the Superior Court in New Haven County and tried to the jury before ‘Williams, J.; verdict and judgment for the defendant, and appeal by the plaintiff.

Action to recover damages for 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 Haven County and tried to the jury before Holcomb, J., who directed the jury to return a verdict for the defendant, from the judgment upon which the plaintiff appealed. Main Street in Ansonia runs substantially north and south, and is about forty-one feet wide between curbs.

Information in two counts charging the defendant, as secretary of the Manufacturers’ Association of Hartford County, with a violation of chapter 163 of the Public Acts of 1911 (p. 1427), concerning blacklisting,” in refusing to furnish to the Commissioner of the Bureau of Labor Statistics the names of the members constituting said association, and in refusing to permit said commissioner to inspect the books, papers, and records of said association, brought to the Superior…

<p>Action to recover possession of certain land, and damages, brought to and tried by the Superior Court in New London County, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant.</p>

Applications for the determination of the amount of compensation to be paid certain owners of land, water, and water rights, by reason of the proposed diversion and appropriation, by the plaintiff, of the waters of Stony Brook in the town of Montville, pursuant to and as defined in an adopted plan and survey on file, brought to the Hon. 'Milton A. Shumway, a judge of the Superior Court, and heard and determined by him after a motion to quash had been denied and a demurrer to…

2. That inasmuch as the complaint had failed to state a cause of action, certain allegations therein charging the defendants with stock „ watering, manipulation of their books, and misrepresentation of their investments, earnings and expenses, were immaterial.

Information filed in the Criminal Court of Common Pleas in New Haven County by its prosecuting attorney in a cause appealed to that court from the Borough Court of Wallingford; a demurrer to the information having been overruled, the court, Wolfe, J., upon motion of the defendant, erased the case from the docket for want of jurisdiction, from which judgment the State appealed.

<p>Action by a wife against her husband for an accounting of the rents received by him from real estate owned by them as cotenants, brought to the Superior Court in Hartford County and referred to a committee to hear and report the facts; the court, Reed, J., overruled the defendant’s remonstrance to the acceptance of the report, and also a motion that the report be rejected and the committee discharged, and afterward judgment was rendered (Curtis, J.), in conformity with the report, in favor of the plaintiff for $3,569, from which the defendant appealed.</p> <p>The committee appointed to take the account reported these facts:—</p> <p>The plaintiff and defendant intermarried January 27th, 1892. On January 28th, 1893, they purchased a building lot in the city of Hartford, each paying $600, one half the purchase price thereof. The defendant caused the deed to be made out to himself, but on February 4th, 1893, at plaintiff’s request, he conveyed an undivided one-half interest in said lot to her, and each has ever since continued to own an undivided one-half interest in said lot.</p> <p>In 1893 and 1894 a building, containing a store and two tenements, was constructed on said premises, plaintiff and defendant consulting together regarding it. The defendant took active charge of the construction, contracted for the materials and labor necessary therefor, and himself performed a large amount of work upon it, and the plaintiff performed certain services in preparing it for occupancy. The defendant made all expenditures necessary in constructing said building from his own funds. During the time the building was being constructed, the plaintiff and the defendant were living together in peace and harmony as husband and wife, and both intended that said building should be for the joint benefit of both, and the defendant had no intention of charging the plaintiff with the expenditures made by him. The amount of the expenditures made by the defendant in constructing said building was $6,980.43.</p> <p>After the building was constructed and until May, 1899, the defendant rented said store and both tenements, and thereafter continued so to rent the store and one tenement until November, 1905. During all of said time the plaintiff and defendant were living together as husband and wife, and from May, 1899, until November, 1905, they occupied the upper tenement in said building. From the time said building was constructed until November, 1905, the defendant took charge of it; each party, however, with the knowledge and acquiescence of the other, collected a part of the rents thereof, but the defendant collected by far the larger part. Of the rents so collected by him, a portion was, with the knowledge and acquiescence of the plaintiff, deposited by him in a bank in his own name, and the remainder was, with other sums of money earned by him, left in the home of the parties for the use and convenience of the plaintiff and was by her, in large part, expended in paying household bills, buying wearing apparel for herself, and for other like purposes; at various times, however, the plaintiff took a portion of the money so left in the home and deposited it in a bank in her own name, mingling it with other money of her own in a common fund which she used in part for buying wearing apparel for herself, traveling expenses, and the like, and in part in making investments in her own name and right. The rents collected by the plaintiff were mingled by her with the money left by the defendant in the home and disposed of in the same way. Neither party during this period had any intention of calling upon the other to account for the rents collected, or money spent, or deposited by the other. No evidence was offered by which the committee could determine what portion of the rents left in said home was used for the household expenses and the plaintiff’s wearing apparel and the like, or what portions were deposited in the respective names of the parties. The defendant collected rents during said period to the amount of $5,066, and the plaintiff to the amount of $1,698.</p> <p>Prior to November, 1905, the defendant expended for repairs, improvements, insurance, taxes, water rates, etc., about $2,500. What part of the water rates, amounting in all to about $900, was repaid to him by tenants did not appear. During this period said premises were being held and managed for the joint benefit of the parties, and the defendant had no intention of charging said expenditures, or the other expenditures made during this period as hereinafter stated, against the plaintiff.</p> <p>On November 12th, 1905, the plaintiff, with the acquiescence of the defendant, left the defendant’s home and plaintiff and defendant, by mutual consent, have ever since resided separate and apart, since which time the plaintiff has received no part of the rents from said building nor any support from defendant. Since said day the defendant has controlled and managed said building and premises, rented the store and tenements therein, collected the rentals thereof, and made repairs and improvements to said building. During this time he has claimed to be the absolute owner of the building and premises and has denied the right of the plaintiff to collect the rents thereof, and has resisted her attempts to do so. From November 12th, 1905, to November 1st, 1911, he has collected the rents from the building amounting to $7,602, and paid expenses to the amount of about $2,500.</p> <p>The defendant claimed other items of charges, and also the right to charge interest upon his expenditures in constructing, repairing, and maintaining the building. Such claims are stated in the report and were disallowed. The committee found that the defendant never intended to charge interest against the plaintiff, on account of his expenditures in connection with this building, until this action was brought.</p> <p>The report states that the committee finds that yearly intervals were reasonable periods at which the defendant should have accounted to the plaintiff since November, 1905, and that one half the net income from the premises due to the plaintiff at such yearly intervals was as follows: — On November 1st, 1906, $531.73; 1907, $561.34; 1908, $547.58; 1909, $521.25; 1910, $538.33.</p> <p>The committee allowed interest to the plaintiff on the sums so due from said dates to the date of this report, at six per cent, per annum, stating the account as follows:—</p> <p>Stephen Brady to Mary Brady, Dr.</p> <p>To one half the amount of rents collected by said defendant since November 12th, 1905, as stated in paragraph 5 hereof, . . $3,801</p> <p>Cr.</p> <p>By one half the expenditures made by defendant</p> <p>For repairs .... $146.59 Insurance .... 78.00</p> <p>Taxes..... 253.26</p> <p>Street sprinkling . . . 4.04</p> <p>Improvements . . . 67.35 $549.24</p> <p>One half of the expenditure of the defendant in making the improvement stated in paragraph 6 thereof 125.00</p> <p>One half the expenditure of the defendant for water rent during period (d), as stated in paragraph 8 hereof 30.00</p> <p>One half the expenditure of the defendant stated in paragraph 9 hereof 9.22</p> <p>One half the item of $11, expended by the defendant, as stated in paragraph 12 hereof . . ' . 5.50 $718.96</p> <p>Debit balance due the plaintiff . . $3,082.04</p> <p>Add interest due the plaintiff under paragraph 17 hereof . . . 487.65</p> <p>Total amount due plaintiff . . . $3,569.69</p> <p>The report states that all items of receipts or expenditures by either party, and all claims of either party, except such as are included and allowed in the above account, are disallowed.</p> <p>The committee charged the defendant with no rents collected prior to November 12th, 1905, and credited him with no expenditures prior to that date.</p> <p>The report also states several rulings made by the committee upon the trial, against the defendant’s claims and objections.</p> <p>The defendant remonstrated against the acceptance of this report upon the grounds, in substance, that in the account he should have been credited with the cost of constructing the budding, and with the expenses incurred by him upon the property both before and after November 12th, 1905, and with certain other items of expense claimed to have been incurred by him since November 12th, 1905, and with interest upon the sum found to have been paid by him in the construction of the building; and asked that the case be recommitted, and also moved that the report be rejected and the committee discharged. The Superior Court overruled the remonstrance and denied the motion, and rendered judgment for the plaintiff for $3,569.69.</p> <p>The reasons of appeal are (1) the denial of the motion to reject the report; (2) the overruling of the remonstrance; (3) the accepting of the report and “giving judgment as on file.”</p>

<p>General Statutes, § 1081, relating to summary process, provides that if the lessee holds over after the termination of the lease, and “does not show a title in himself which accrued after the giving of the lease,” judgment shall be rendered for the complainant. Held that whatever equitable right or interest in the premises a defendant might have acquired by virtue of some written agreement with the plaintiff respecting a further lease, such right or interest was not “a title” which could be of any avail to the defendant in an action of summary process; and that this was true even though upon the facts alleged in the answer a court of equity would have come to the defendant’s relief..</p> <p>In the present case the Seminary, which owned the premises in question, wrote to its tenants on June 16th, 1911, which was more than ten months before the expiration of their lease, that they might have a further lease for three years at an annual rental of SI,800, and that if they desired “a five year lease” the trustees of the Seminary “would be willing to grant two additional years at S2,000 per annum.” On April 4th, 1912, less than a month before their lease expired, the defendants wrote asking to have “the new lease made as per your letter of June 16th for three years and the two year renewal clause at the prices mentioned.” Held that the offer upon the part of the Seminary was either a three year lease or a lease for five years, while the letter of the defendants was not an acceptance of either proposal, since it called for a lease for three years with a two year renewal clause, under which the lessor would be bound for five years and the lessees for either three or five at their option.</p> <p>The case of Johnson v. Phomix Mutual Life Ins. Co., 46 Conn. 92, distinguished.</p>

Suit to determine the validity and construction of the will of Harriet N. Sawyer of Hartford, deceased, brought to and reserved by the Superior Court in Hartford County, Curtis, J., upon the facts alleged in the complaint, for the advice of this court. Harriet N. Sawyer, late of Hartford, died January 26th, 1895, leaving both real and personal estate and a will containing the following clause:— “Third.

Action by lower riparian owners to recover damages for wrongfully diverting, discharging, and polluting the waters of two brooks flowing through their farm, brought to the Superior Court in Hartford County and tried to the jury before Reed, J.; verdict for the plaintiffs for $3,075 which the trial court set aside as excessive, from which ruling the plaintiffs appealed.

Writ op error to reverse a judgment of the Superior Court in and for New London County accepting the report of a committee awarding the defendant $1,000 damages for injury to its property caused by a change of grade in the highway, brought to the Superior Court in New London County where the writ was abated and dismissed (Shumway, J.) upon a plea to the jurisdiction, from which judgment the plaintiff appealed.

Assumpsit on a manufacturer’s account, brought to and tried by the Superior Court .in Fairfield County, Curtis, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant. The plaintiff, a manufacturer of woolen cloths, had for several years prior to this action sold goods to the defendant, a manufacturer of clothing. The plaintiff kept an open account of said sales on its books, and entered the same when made but not in the order of delivery.

Action to recover damages for malicious prosecution, brought to the Superior Court in Hartford County and tried to the jury before Williams, J.; verdict and judgment for the plaintiff for $500, and appeal .by the defendant.

<p>A verdict should not be set aside where it is apparent that there was some evidence upon which the jury might reasonably have reached their conclusion.</p> <p>Notwithstanding the rule that oral evidence is inadmissible to vary or explain a written agreement, such evidence may always be received, as between the original parties, to prove that the writing in suit was procured by false and fraudulent representations; otherwise the rule might be invoked as a means of perpetrating or shielding the alleged fraud.</p> <p>A promise to do an act in the future, when coupled with a present intent not to fulfil it, is a false and fraudulent representation.</p> <p>The repudiation of a contract obtained by fraud may be as satisfactorily evidenced by the acts and conduct of the defrauded party as by a formal notification of his dissent.</p> <p>Whether a contract has been repudiated or not is a question of fact for the jury.</p> <p>It is competent for the trial judge to direct the attention of the jury to the evidence upon a given subject and to comment upon its weight.</p> <p>The defendants alleged that the written contract upon which the plaintiffs relied had been secured by fraud, and in his charge the trial judge instructed the jury that while the burden of proof was upon the defendants to establish the fraud alleged, it need not be proved directly but might be inferred from facts and circumstances surrounding the transaction, provided they were such as to lead fairly and reasonably-to such inference, “for fraud is not otherwise to be presumed.” Held that while the quoted expression was not well chosen, it could not have misled the jury when taken in connection with its context, the manifest purpose of which was to emphasize the fact that while fraud might be inferred as indicated, it could not be presumed.</p> <p>Evidence of other frauds of like character with those in suit, and relating to the same subject-matter, committed by the same parties at or about the same time, is admissible as tending to prove the fraudulent nature of the acts alleged.</p>

Action for slander, brought to and tried by the Court of Common Pleas in Hartford County, Coats, J.; facts found and judgment rendered for the plaintiff for $150, and appeal by the defendant.

<p>Action to recover damages for an alleged forcible seizure and detention of household goods belonging to the plaintiff, for wrongfully evicting her from rooms hired by her in the defendants’ house, and for assaulting and beating her, brought to the Court of Common Pleas in Hartford County and tried to the jury before Coats, J.; verdict and judgment for the plaintiff for $474, and appeal by the defendants.</p>

Action in the nature of ejectment, brought to the Superior Court in New London County and tried to the jury before Shumway, J.; verdict and judgment for the plaintiff, and appeal by the defendant.

Action to recover damages for obstructing a right of way, brought to the Superior Court in New London County and tried to the jury before Shumway, ■J verdict and judgment for the plaintiff, and appeal by the defendant. The complaint was in two counts. Each alleged the plaintiff’s ownership of a described piece of real estate, with a right of way over an adjoining lane which gave access to a near-by street.

Action to recover for goods sold and delivered, brought to the City Court of New Haven and tried to the jury before Tyner, J.; verdict for the plaintiff for $193, which the trial court set aside upon motion of the defendant, from which action the plaintiff appealed.

<p>Action to recover damages for personal injuries alleged to have been caused by the negligent conduct of the defendant, brought to the Superior Court in New London County and tried to the jury before Shumway, J.; verdict and judgment for the defendant, and appeal by the plaintiff from the refusal of the trial court to set aside the verdict as against the evidence, and also for alleged errors in the rulings and charge of the court.</p>

Action to recover damages for personal injuries alleged to have been caused by the kick of a vicious horse which the defendant had negligently left unattended and unharnessed in the street, brought to the Superior Court in New Haven County and tried to the jury before Williams, J.; verdict and judgment for the plaintiff for $1,350, and appeal by the defendant.

Action on the so-called common counts, brought to the Court of Common Pleas in New London County, where the plaintiff, after a judgment by default had been set aside, moved to amend by filing a substitute complaint, which the trial court, Waller, J., denied, and subsequently rendered judgment for the defendants, from which the plaintiff appealed.

<p>In an action against a street-railway company for damages for causing the death of the plaintiff’s intestate by negligence, the burden rests upon the plaintiff to prove the decedent’s freedom from contributory negligence; and therefore in the absence of any evidence upon that subject, judgment must necessarily be rendered for the defendant.</p> <p>There is no presumption of law that a boy eleven years old was incapable of contributory negligence. To determine whether he was or not it is necessary to take into consideration not only his age, but also his intelligence, experience, and capacity to understand and avoid the danger to which he was exposed.</p> <p>The evidence in the present case reviewed, and the negligent act of the decedent in running upon the track just in front of the approaching car, held to have been the proximate cause of his injury.</p>

<p>Action to rQcover compensation for storing, caring for, and repairing the defendants’ automobile, brought to the Court of Common Pleas in New Haven County where the defendants filed a counterclaim and the cause was tried to the jury before Simpson, Jverdict for the defendants to recover $264.51, which the trial court ordered to be set aside unless the defendants filed a remittitur of $100, and upon their remission of that amount rendered judgment in their favor for $164.51, from which the plaintiff appealed.</p> <p>In the early spring of 1910 the plaintiff, a keeper of a public garage, and the defendants, owners of an electric automobile, entered into an agreement whereby the former undertook to repaint and refurnish the automobile, and to supply and install therein new batteries capable of a prescribed mileage, for the sum of $250, and to store and care for it, to keep its batteries charged as required for use, and to deliver and call for it at the defendants’ house when requested, for the further sum of $30 per month. The plaintiff seeks to recover a balance of $291.73, claimed to be due for services rendered and supplies furnished under this contract from the time it was made to the early part of November. The charges upon the bill of particulars amount to $498.23; the credits to $188.60.</p>

Action by a property-owner to secure an adjudication that a city building line was null and void in so far as it affected her property, and for damages, brought to and tried by the Superior Court in New Haven County, Holcomb, J., upon demurrer to the substituted complaint; the court sustained the demurrer, refused to allow a further amendment of the complaint (Gager, J.) because it would be unavailing, and afterward rendered judgment (Holcomb, J.) for the defendant, from…

Action to recover damages for personal injuries alleged to have been- caused by the defendant’s negligence, brought to the Superior Court in New Haven County, where a plea in abatement and to the jurisdiction was overruled (Gager, J.) and the cause was afterward tried to the jury before Gager, J.; verdict and judgment for the plaintiff for $5,000, and appeal by the defendant.

Action to recover for legal services, and disbursements incident thereto, brought to the Superior Court in New Haven County and tried to the jury before Gager, J.; verdict and judgment for the plaintiffs for $2,871, and appeal by the defendant.

Complaint praying for a writ of prohibition to restrain the judge of the Court of Probate for the district of Avon from proceeding to take cognizance of an application for the probate of the will of Cornelia W. Roberts, deceased, brought to the Hon. Marcus H. Holcomb, a judge of the Superior Court, who issued a rule to show cause returnable before the Superior Court in Hartford County, where the case was afterward tried on demurrer to the complaint; the court (Ralph Wheeler,…

Edwin B. Gager, a judge of the Superior Court; facts found and judgment rendered appointing appraisers, and appeal by the defendants.

Action of replevin, brought to the Court of Common Pleas in Fairfield County where the issues between the plaintiffs and the defendant Rowell were separately tried by the court, Scott, Jfacts found and judgment rendered for that defendant, and appeal by the plaintiffs. The defendant Rowell subleased two offices, adjoining and connected with his own office, to Lanyon.

Appeal by a taxpayer from a decision of the County Commissioners of Fairfield County authorizing a liquor licensee to remove his business from Main Street to Gregory Street in the city of Bridgeport, taken to the Superior Court in Fairfield County, where a demurrer to a plea in abatement filed by the licensee was overruled (Case, J.) and afterward the plea was sustained and the appeal dismissed (Burpee, J.), from which the taxpayer appealed.

Action to recover the amount of a bond given by the defendants to dissolve an attachment of property, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; facts found and judgment rendered for the plaintiff for $677, and appeal by the defendants.

<p>A real-estate broker is not entitled to recover his commission, unless he either makes a sale, or procures a customer who is ready and willing to buy the property on the terms prescribed by the owner.</p> <p>In the present case the defendant property-owner signed a memorandum of the terms upon which he would sell, but the customer declined to take the property because the owner would not warrant his shore front to be at least fourteen hundred and fifty feet. The memorandum gave the boundaries of the property, but not the frontage in feet, though the owner had previously said, during the early oral negotiations and in response to a question, that his shore front embraced between fourteen and fifteen hundred feet. Held that under these circumstances the broker was not entitled to his commission, since he had failed to procure a person who was willing to purchase the property in accordance with the terms upon which the broker was authorized to sell it.</p> <p>The customer submitted a counter memorandum which included the warranty respecting the fourteen hundred and fifty feet of shore front, to which the owner would not agree. Held that the owner was under no obligation to prepare and present any other or further proposal.</p> <p>Oral negotiations for a sale of real estate are presumed to have been merged in a memorandum, subsequently drawn, which purports to set forth the terms upon which the owner agrees to sell.</p> <p>A statement of the owner of property as to the length of his shore front is immaterial, provided it is obviously a mere expression of opinion.</p> <p>Statements in the nature of admissions made by a duly authorized attorney to the court during the trial of a case, if not conclusive as to the facts stated, are at least to be treated as admissions of his client, and therefore as evidence of the facts so admitted.</p>

Action to recover the amount of six promissory notes payable to the order of a decedent upon whose estate the plaintiffs were alleged trustees, brought to and tried by the Superior Court in Fairfield County, Burpee, J facts found and judgment rendered for the plaintiffs for $17,421, and appeal by the defendant. The complaint contains six counts.

<p>The Motor Vehicle Law (Public Acts of 1909, Chap. 211) provides, in § 3, that every automobile dealer, liveryman, or manufacturer, instead of registering each ear owned or controlled by him, may apply for and obtain a general distinguishing number or mark, under which every motor vehicle owned or controlled by him, until sold or loaned for a period of more than five successive days, shall be regarded as registered. Held that although the statute was not designed to allow others, under cover of the dealer’s general number or distinguishing mark, to operate cars belonging to or controlled by themselves, yet an automobile, while in the exclusive possession and control of a dealer for sale, might be loaned by him to its owner for an afternoon’s use without impairing the validity of its registration under the dealer’s general number or mark, provided the arrangement between them was entered into in good faith and not as a mere cover to enable the owner to operate his own car and escape the payment of the registration fee.</p> <p>It would be a forced construction of the Act to hold that such temporary use of the car by its owner ended the dealer’s “control” of it, in spite of the intent and agreement of the parties to the contrary, merely because it was legally possible for the owner at any time to recall his authority to sell and to resume possession of the car.</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 Haven County and tried to the jury before Bennett, Jverdict and judgment for the plaintiff'for $3,500, and appeal by the defendant.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant’s servant, brought to the City Court of Hartford and tried to the jury before Bullard, J.; from a verdict and judgment for the defendant the plaintiff appealed to the Superior Court in Hartford County where the defendant moved to erase the cause from the docket, upon the ground that the statute allowing such an appeal had been repealed before the appeal in this case…

<p>Writ of habeas corpus to determine the legality of the imprisonment of one Domenico Cesare in the State prison, brought to and heard by the Hon. Howard J. Curtis, a judge of the Superior Court, who adjudged that the prisoner was legally imprisoned and remanded him to the custody of the respondent to serve his sentence, from which judgment the petitioner appealed.</p>

Action to recover damages for injuries to the person and property of the plaintiff, alleged to have been caused by the defendant’s negligence, brought to the Superior Court in New Haven County and tried to the jury before Gager, J.; the trial court directed a verdict for the defendant and rendered judgment thereon, from which the plaintiff appealed.

<p>Action to recover damages for breach of an oral agreement respecting a division of the profits to be made from the purchase, improvement and sale, or rental, of certain real estate, brought to and tried by the Superior Court in Fairfield County, Burpee, J.; facts found and judgment rendered for the plaintiff for $1,100, and appeal by the defendant.</p> <p>The following facts are established by the finding of facts and the finding of the issues in favor of the plaintiff :— :</p> <p>About January 1st, 1911, the plaintiff and defendant entered into an oral agreement to share equally in the profits that should be made from the purchase of a lot of land, the building and rental of a house thereon, and the sale thereof, if an opportunity to sell should be had. No time limit was placed upon the continuation of the agreement, but it might have been fully performed within one year.</p> <p>It was a part of the agreement that the defendant should have the title of the land conveyed to himself and the plaintiff jointly. Each party undertook to do certain things to carry out the agreement and necessary to complete the transaction. The plaintiff agreed to pay one half of the price of the lot, to wit, $1,200, render or cause to be rendered certain services in connection with the enterprise, and contribute $900 toward the cost of erection of the building, which was to cost $7,800. The defendant was to contribute $600 in money toward the purchase of the lot, his services as builder or contractor, and also $900 toward the cost of the building, and, in addition, to pay any excess in the cost of the building over $7,800.</p> <p>The plaintiff performed, or caused to be performed at his expense, the services which he undertook to render, and either did or offered to do, and was at all times able and willing to do, all the other things required of him to be performed under the terms of the contract.</p> <p>The defendant purchased the lot, taking title in his own name, and paying the entire purchase price, although plaintiff stood ready and willing to contribute his share thereof. The same day he conveyed the property to his wife, in whose name it has stood ever since. Thereafter the defendant stated to the plaintiff that he had procured the money for the purchase of the lot from his wife, and that, when the building had proceeded, he would turn over the plaintiff’s share to him upon the plaintiff paying his'share of the money. This explanation satisfied the plaintiff. Thereafter, in pursuance of the partnership agreement between them, the plaintiff and defendant agreed to erect a six-family house upon said lot. The defendant subsequently refused to allow the plaintiff to contribute the $900 agreed upon, although he offered to do so, and repudiated the agreement, and then and ever since has refused to abide by it.</p> <p>A building was erected upon the land by defendant, pursuant to and in substantial accordance with the plans and specifications agreed to by the plaintiff, which was completed and ready for occupancy August 1st, 1911.</p> <p>The rental profit of the building was estimated by the parties to be, and in fact was, at the rate of $800 per year. The value of the property at the time of the completion of the building was, and remained, $1,500 more than its cost.</p> <p>The allegation of the complaint was that “the plaintiff and the defendant entered into an agreement, by parol, whereby they were to purchase real estate jointly and construct a building thereon, and to share in the profits arising therefrom.”</p>

<p>A testatrix, married in 1872, gave ber husband, who was also her executor, a life interest in all of her property with remainder in fee to the - defendant, and authorized the former to transfer to the defendant the whole or any portion of her estate. She died in 1902, and in 1906 the husband and the defendant agreed to, and did, divide the property between themselves, each taking definite portions of the estate pursuant to a so-called mutual distribution, which embodied the agreement and which was filed in and accepted by the Court of Probate, together with the executor’s final account. Included in, but not inventoried as part of, the estate of the testatrix, nor embraced in the division as made, were one hundred shares of stock in a Minnesota corporation which the testatrix received in 1899 as a legacy. This stock stood in her name, and under the law of Minnesota carried with it a personal liability for an amount equal to the par value of the stock. The company became insolvent, and assessments on such stock were duly made by the Minnesota court and claims therefor were presented to the executor here — though not until after the aforesaid division of the estate — ■ and upon his refusal to pay, a suit was brought by the receiver of the corporation. The defendant was notified of this suit and requested to defend it or assist in the defense, but refused to do so. While it was pending the receiver agreed to accept 83,000 in full settlement, and the executor thereupon applied to and was authorized by the Court of Probate, after due notice to the defendant, to compromise the claim upon that basis. In a suit to compel the defendant to contribute his fair share of said sum it was held:—</p> <p>1. That the claim upon the first assessment, which accrued in 1902, was barred by General Statutes, § 326.</p> <p>2. That the claim for the second assessment, made in 1907, was duly presented, and was a valid obligation of the estate.</p> <p>3. That the acceptance of the bequest of the stock by the testatrix created a contract between her and the corporation whereby she acquired the rights of a stockholder and became subject to the liabilities which the ownership of such stock carried with it; and that the contract, being for the benefit of herself and her estate, was one which she might lawfully make, although married before 1877.</p> <p>4. That inasmuch as her husband had not asserted his statutory right to the possession of this stock, nor to the income therefrom, and had not inventoried it as a part of her estate, he must be deemed to have divested himself of all right to it, so that it virtually became the sole and separate estate of his wife.</p> <p>5. That the receiver’s demands for the assessments were “doubtful or disputed claims ” within § 347 of the General Statutes, a compromise and settlement of which the Court of Probate had authority to order.</p> <p>6. That the defendant could not now attack the jurisdiction of the Court of Probate, nor question the validity of the claims ordered compromised.</p> <p>7. That the disposition of the estate made by the husband and the defendant must be treated as a mutual distribution and not a sale.</p> <p>8. That a distribution of an estate pursuant to the method provided in General Statutes, § 310, or in § 395, would protect the administrator or executor against any claim of invalidity or want of equity; but that if the parties interested chose to make an informal division and the executor was willing to take the risk of having the property so divided, such division would be as valid as one made under the sanction of the statute.</p> <p>9. That equity required each of the parties to pay his proportion of the unexpected after-accruing claim; that is, that each should pay a sum proportioned to the value of the estate received by him on the division.</p> <p>10. That the fact that the compromise ordered by the Court of Probate was still subject to the approval of the Minnesota court which ordered the assessment, did not affect the validity of the claim, nor lessen the duty of the executor to secure funds from the distributees of the estate with which to pay it.</p> <p>11. That the order authorizing a compromise was not open to attack upon the ground that it included the claim upon the first assessment as well as that upon the second.</p> <p>12. That there was no merit in the defendant’s claim that the real estate, which the husband took in the mutual division, should first be applied to the payment of the receiver’s demand.</p> <p>Two courses, at least, are open to an executor with respect to claims accruing after a distribution of the estate has been made: he may refuse to pay, defend a suit, and, if defeated, compel the distributees to refund to the estate an amount sufficient to satisfy the judgment, or he may require the repayment of an amount sufficient to satisfy the claim and his own legitimate expenses incurred in effecting its settlement.</p> <p>The rights and obligations of a woman married in 1872 differ largely from those at common law, and are in part the same as those now prescribed in § 591 of the General Statutes.</p>

Action to recover for goods sold and delivered, 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 $201, and appeal by the defendant.

Action to recover damages for fraud in inducing the plaintiffs to enter into a contract for the purchase of real estate, brought to and tried by the Superior Court in New Haven County, Burpee, J.; facts found and judgment rendered for the plaintiffs for $4,021, and appeal by the defendant.

Action in the nature of trespass for unlawfully entering the premises of the plaintiff’s intestate and building a highway thereon, brought to the Superior Court in Litchfield County where the plaintiff was nonsuited in a trial to the jury before Greene, J., and from the refusal of the trial court to set aside such judgment the plaintiff appealed.

Action for goods sold and delivered, and also to recover damages for breach of contract, brought to and tried by the Superior Court in Litchfield County, Greene, J.; facts found and judgment rendered for the plaintiff for $21 only, from which it appealed.

Action to recover damages for the loss of a pair of horses caused by an alleged defective highway in the defendant town, brought to the Superior Court in Windham County where the plaintiff was nonsuited in a trial to the jury before Bennett, J., from which judgment he appealed.

Action to recover the amount of a written order upon a third person given by the defendant to the plaintiff and alleged by the latter to be a bill of exchange, brought to and tried by the City Court of Hartford, Bullard, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant. The defendant, a subcontractor under one Robert Davis, a general contractor, was indebted to the plaintiff for materials with which the former had completed his subcontract.

Suit to determine the validity and construction of a clause in the will of Sarah Sanford Black of New Milford, deceased, brought to and reserved by the Superior Court in Litchfield County, Burpee, J., upon the allegations of the complaint, for the advice of this court.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Hartford County- and tried to the jury before Williams, J.; verdict and judgment for the defendant,'and appeal by the plaintiff.

Action to recover damages for the defendant’s alleged wrongful entry upon the plaintiff’s land, for injuries thereto, and for the removal therefrom of a certain building, brought to and tried by the Court of Common Pleas in Hartford County, Goats, J.; facts found and judgment rendered for the plaintiff for $155, and appeal by the defendant. The complaint contains five counts, each of which alleges an unlawful entry upon the plaintiff’s land.

Action to recover damages for negligently running an automobile over and killing a registered dog, brought by appeal from a judgment of a justice of the peace to the Court of Common Pleas in New Haven County, where the plaintiffs were nonsuited in a trial to the jury before Wolfe, J., from which judgment they appealed.

Action to foreclose a mortgage of real estate, 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 Car and Equipment Company. .

Action to recover damages from a fire insurance agent for wrongfully causing the cancellation of certain policies of fire insurance on the plaintiff’s property, and for refusing to disclose the names of the companies in which the property was insured, brought to the Superior Court in New Haven County where a demurrer to the reply was sustained in part {Burpee, J.) and the cause was afterward tried to the court, Greene, J.; facts found and judgment rendered for the defendant,…

Action to recover damages for injury to the plaintiff’s premises caused by the elimination of a grade-crossing in the town of Bristol, brought to the Superior Court in Hartford County where the defendant’s motion to expunge the second count of the complaint was granted and an amendment to the first count was disallowed {Reed, J.), after which a demurrer to the complaint was sustained {Ralph Wheeler, J.) and judgment rendered for the defendant, from which the plaintiff…

Action to recover damages for the loss of a sheep which was alleged to have been attacked and killed by a dog or dogs in the defendant town, brought by appeal of the defendant from a judgment of a justice of the peace to the Court of Common Pleas in New London County, where the plaintiffs were nonsuited in a trial to the jury before Waller, J., from which judgment they appealed.

Action in the nature of an appeal from an assessment of benefits made by the defendant in connection with the layout of a city street, brought to and tried by the Superior Court in New Haven County, Williams, ,/.; facts found and judgment rendered annulling said assessment as against the plaintiff, for want of notice, and appeal by the defendant.

Action to recover upon a promissory note for $10,000 alleged to have been executed and delivered by one of the defendants to the plaintiff, and also to have certain conveyances of property by such defendant to her co-defendant set aside as in fraud of the plaintiff’s rights, brought to and tried by the Superior Court in New Haven County, Shumway, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff.

Action in the nature of ejectment, brought to and reserved by the Superior Court in Fairfield County, Holcomb, J., upon an agreed statement of facts, for the advice of this court. In 1847, and for a long time prior thereto, one Birdseye G. Noble was and had been the owner in possession of a considerable tract of land in Bridgeport, adjoining the harbor.

Suit to compel the defendant to lay an equalization tax in the manner prescribed by chapter 146 of the Public Acts of 1909, relating to the town management of public schools, or to pay the plaintiff the just and true value of its school property, possession of which the town was alleged to have taken, or for other relief, brought to and reserved by the Superior Court in Hartford County, Ralph Wheeler, J'., upon a finding of facts, for the advice of this court.

<p>Action to restrain the defendant from maintaining a dam and embankment and from further diverting the freshet water of Farm River, so-called, from the plaintiff’s premises in East Haven, whereby his lowlands were fertilized, and also for damages, brought to the Superior Court in New Haven County and tried . to the jury before Gager, J.; verdict and judgment for the plaintiff for $250 damages, together with a decree for' an injunction, and appeal by the defendant.</p> <p>The parties offered evidence to prove the following facts, which, in so far at least as they are material to any question of law presented, were uncontradicted:—</p> <p>Prior to 1896 the plaintiff was the owner of a considerable tract of land in East Haven, used by him for farming purposes. The eastern portion of its northern boundary was Farm River, so-called, which flowed from east to west. The western portion of this boundary was back a short distance from the river, another ownership intervening. Back from the river some six hundred to twelve hundred feet was a line of hills and high ground. This line of high land was farther from the river on the east than on the west side of the tract by reason of the gradual approach of high land and river to each other. The space between the two was lowland meadow suited to the growth of hay.</p> <p>In 1896 the defendant began condemnation proceedings to acquire a strip of land one hundred feet wide extending across this meadow from the river to the hills. It was alleged that this strip was desired for increasing the capacity of Lake Saltonstall as one of the defendant’s reservoirs, and the building of conduits and canals for the conveyance of water from Farm River to said lake. Pending these proceedings the plaintiff conveyed to the defendant by warranty deed, without other reservation than a right of way, said strip, which was described as being about fourteen hundred feet long and extending fifty feet in width on each side of the middle line of a proposed tunnel and canal to connect Farm River with Lake Saltonstall. The location of this middle line was defined. In 1901 the plaintiff conveyed to the defendant all the land which he owned easterly of the line of the proposed canal and tunnel, and other land lying westerly of the canal. This deed was also a warranty without reservation other than a right of way. As the result of these deeds the defendant acquired all of the plaintiff’s land whose boundary touched the river, and the tract which the plaintiff retained lay farther to the westward, and down stream, and at no point reached the river. In the tract thus retained by the plaintiff were about sixteen acres of the lowland. At the east this tract extended back from the river about rune hundred feet, and at the west about six hundred feet. It was about one thousand feet in length, measuring east and west.</p> <p>The southerly river bank from a point some three hundred feet easterly of the plaintiff’s present land down stream was about four feet higher than ordinary water, and freshets did not overflow it. Above the point referred to it was only about two feet high for some distance. As a result the river during ordinary freshets was accustomed to overflow at this place. Upon such occasions the water spread out over the expanse of meadow between the river and high land, and flowed down over nearly its entire width in volume sufficient to make a deposit thereon, which was valuable as a fertilizer, until it again found the river a short distance after it had passed over the plaintiff’s land. These freshets occurred in winter and spring only; never in summer; and some years there were none at all. Their frequency, when they did occur, varied from season to season. There was no freshet in 1911.</p> <p>In 1907 and the early part of 1908 the defendant built an underground conduit from a point about one hundred feet away from the river across the lowland in the line of the one hundred foot strip, constructed a tunnel under the adjacent hills, connected the conduit therewith,. and made connection between the tunnel and Lake Saltonstall. Connection between the conduit and river was not made during the period with which the questions arising in this case are concerned. In the construction of the conduit the earth was thrown up on the westerly or down stream side, and there left, forming a ridge of earth in the nature of a continuous embankment, substantially level, and approximating four feet in height. With the lapse of time this embankment became eaten away in spots and thus presented an unequal obstruction, and occasioned irregular and accelerated flows.</p> <p>By reason of this embankment the freshet waters of the years 1908, 1909, and 1910 which overflowed the south bank of the river did not flow down to and flood the plaintiff’s land as and in the same beneficial manner it had formerly done.</p> <p>The plaintiff claimed as elements of his damage (1) the reduced value of his hay crops due to the decreased fertilization; (2) the running dry in 1910 of his well situated upon the high land; and (3) the loss of his ability to water his cattle at the river on the highway bounding his land on the west. The court withdrew from the consideration of the jury this third element of damage, and submitted to it the other two.</p> <p>Other facts found, having no relevancy to the questions discussed, need not be recited.</p>

Suit to determine the validity and construction of the will of Lucy J. Murphy of Bridgeport, deceased, brought to and tried by the Superior Court in Fairfield County, Case, J.; facts found and judgment rendered in favor of the heirs at law of the testatrix, exclusive of her daughter, from which the administratrix of the latter appealed.

Action against the surety upon a bond given to secure the dissolution of an attachment, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; facts found and judgment rendered for the plaintiff for $311, and appeal by the defendant.

Writ op Mandamus requiring the defendants, as registrars of voters, to restore the name of the plaintiff to the voting list of the town and city of Bridgeport, or to show cause to the contrary, returnable to and tried by the Superior Court in Fairfield County, Holcomb, J., upon a demurrer and motion to quash the alternative writ; the court sustained the demurrer and dismissed the writ, from which judgment the plaintiff appealed.

<p>Suit to determine the validity and construction of the will of Martha C. Brantingham of Stamford, deceased, brought to and reserved by the Superior Court in Fairfield County, Burpee, J., upon the facts alleged in the complaint and answers, for the advice of this court.</p> <p>The* testatrix, who resided in Stamford, in this State, executed, while in France, a holographic will in the French language. The will was admitted to probate by the Court of Probate for the district of Stamford. The will is printed in the foot-note,* and the translation of it as filed in the Court of Probate is as follows:—</p> <p>“I, the undersigned, Martha Coggeshall Hawley, widow Brantingham, give and bequeath to my two sons, Charles Hawley Brantingham and Franpis Edward Brantingham, jointly and with right of accretion between them the entirety of all goods and rights movable and immovable which comprise my estate, to be divided between them or their legitimate children in equal parts and per stirpes. On express condition in respect tG the legacy aforesaid, at the death of one of 'my two sons or of his representatives, I will that all the goods and rights which he has received in my succession shall be delivered up and become the property of the survivor or survivors of them.</p> <p>“I name for executor testamentary Walter E. Houghton, Treasurer of the Citizens’ Savings Bank of Stamford, Connecticut, United States of America, with all powers and authority to attend to the strict execution of the conditions aforesaid.</p> <p>“I revoke every former testament, willing that this only shall be executed as containing my last wishes.</p> <p>“Done at Cannes, the 31st of March, 1906.</p> <p>Martha C. Brantingham.”</p> <p>This will was copied by the testatrix from a draft made at her request by a French notary, to whom she had stated her testamentary wishes.</p> <p>The testatrix died in Switzerland in September, 1911, and left surviving her as her only heirs at law the two sons who are named in the will. Charles H. Brantingham is now seventy years of age, was married in 1883 to his present wife, who is now fifty-nine years of age, and no child has ever been born to them. The other son is now fifty-seven years of age, and has never married. The executor has settled his administration account, and has on hand for distribution more than $123,000. The defendants, the two sons, on November 21st, 1912, made and executed a mutual division of the assets of the estate, which consist of real estate in Stamford, valued at about $6,500, and stocks, bonds, and other personal securities, and have filed such distribution in the Court of Probate. On December 2d, 1912, they made and executed between themselves a deed, wherein each purports to relinquish and assign to the other any and all right of survivorship which he may have in and to the part of the estate by said division apportioned and set to the other. They have also made and filed in the Court of Probate a waiver, each in favor of the other, of any requirement of a bond for tbe protection and security of any right of survivorship accruing to either of them by virtue of the provisions of the will. They have made demand in writing upon the plaintiff, as executor, that he deliver over to each of them, respectively, the personal property respectively set tó each of them in said mutual division. The plaintiff refused to comply with such demand of the defendants, and brought this complaint as an amicable proceeding for advice as to the questions therein propounded. Those questions appear in the opinion.</p>

Action to recover damages for an alleged conspiracy to secure the plaintiff’s discharge from employment, and to prevent him from working at his trade in the city of Danbury, brought to the Superior Court in Fairfield County and tried to the jury before Ralph Wheeler, J.; verdict and judgment for the defendants, and appeal by the plaintiff.

<p>Appeal by the plaintiff from a judgment of the Superior Court in Fairfield County, Holcomb, J., accepting the report of a committee and awarding one of the defendants $4,285 as damages for taking her land for bridge and park purposes.</p>

Action to recover of the defendant the amount of an assessment against it made by the plaintiff to pay for losses incurred by it upon its policies of “strike insurance” so-called, brought to the Superior Court in New Haven County and tried to the jury before Williams, J., who directed a verdict for the defendant, from the judgment upon which the plaintiff appealed.

Information for disobeying an order of the health officer of the borough of Naugatuck quarantining the defendant and her two minor children on account of their supposed infection with scarlatina or scarlet fever, brought to the District Court of Waterbury and tried to the jury before Peasley,verdict and judgment of guilty, and appeal by the defendant.

<p>To entitle a defeated litigant to a new trial for newly-discovered evidence, it is essential that he should have been diligent in the preparation of his case upon the original trial; and if the alleged new evidence relied upon could have then been obtained by reasonable efforts, a new trial will not be granted.</p> <p>In the present case it appeared that a defendant was fully informed by the pleadings that the testimony of a codefendant, who had left the State, was or might be of importance to him, but that he made no special effort to find him, and did not ask for a postponement or continuance of the trial upon that ground. Held that under these circumstances the trial court was fully justified in finding that the applicant for a new trial had not exercised due diligence in endeavoring to find the absentee; and that it was also justified in its conclusion that the alleged newly-discovered evidence would not probably change the result were the cause to be tried again.</p> <p>The failure of a party, when on the witness-stand, to contradict certain testimony of his adversary, is not necessarily equivalent to an admission that it is true.</p> <p>An application for a new trial for newly-discovered evidence must set forth the evidence produced on the former trial, in order that the court may see whether injustice was done, and whether the new evidence is likely to reverse the result.</p> <p>If the adverse party desires to controvert the accuracy of the statement of the former evidence or of the new evidence, or to produce other evidence to be considered in connection with that alleged by the petitioner, he may do so, and for this purpose no pleadings are essential.</p>

Action by a trustee in bankruptcy to recover the value of property which was alleged to have been transferred to and received by the defendant, a creditor, in violation of the provisions of the Bankrupt Act prohibiting preferences, brought to and tried by the Superior ■ Court in Litchfield County, Case, J.; facts found and judgment rendered for the plaintiff for $7,083, and appeal by the defendant.

Action in the nature of ejectment, brought to and tried by the Superior Court in Windham County, Shumway, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action to recover damages for personal injuries alleged to have been caused by the bite of a dog owned by the defendant, brought to and tried by the Court of Common Pleas in Hartford County, Smith, J.; facts found and judgment rendered for the plaintiff for $5 damages, and appeal by the plaintiff from the refusal of the trial court — affirming the action of the clerk — to tax costs in excess of the damages awarded.