Volume 87 — Connecticut Reports

Action to recover the reasonable value of services rendered, brought to and tried by the Superior Court in New Haven County, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff for $232, and appeal by the defendant. No error,

Indictment for murder in the first degree, brought to the Superior Court in Hartford County and tried to the jury before Bennett, J.; verdict and judgment of guilty, and appeal by the accused. No error.

•• Action to restrain the defendant from practicing medicine in the city of New Britain in alleged violation of his agreement with the plaintiff, brought to and tried by the Court of Common Pleas in Hartford County, Smith, J., upon a demurrer to the complaint; the court overruled the demurrer and, upon the refusal of the defendant to plead further, rendered judgment for the plaintiff, from which the defendant appealed. No error.

<p>Action to restrain the defendant from maintaining; occupying and using a structure erected by him above and across a gangway alleged to be owned in fee by the plaintiff, and for damages, brought to and tried by the Superior Court in Hartford County, Curtis, J.; facts found and judgment rendered.for the plaintiff, and appeal by the defendant. Error in part.</p>

Action to recover, for work and labor and material furnished pursuant to a building contract, also to recover for certain items of extra work and labor, brought to the Superior Court in Fairfield County and referred to a committee who heard the parties and reported the facts; the court, Burpee, J., accepted the original and supplemental reports, overruled a remonstrance thereto filed by the defendant, and rendered judgment for the plaintiff for $2,943, from which the…

Action for the specific performance of an alleged contract to pay the indebtedness of the plaintiff’s assignor and debtor, or for damages for the breach of such contract, brought to and tried by the District Court of Waterbury, Peasley, Jfacts found and judgment rendered for the plaintiff for $1,147, and appeal by the defendant. Error and cause remanded for the rendition of a judgment for $661.84 w'dh interest.

Action to recover damages for the loss of four steers which were alleged to have been killed upon the defendant’s tracks through its failure to maintain a sufficient fence between its property and the pasture of the plaintiff, brought to the Court of Common Pleas in New Haven County where the plaintiff was nonsuited in a trial to the jury before Simpson, J., from which judgment the plaintiff appealed. Error and new trial ordered.

Alternative writ of mandamus requiring the respondent to countersign and deliver to the petitioner an order for $9,000, in payment for land purchased by the board of education of the city of Waterbury for school purposes, issued by and returnable to the Superior Court in New Haven County, where, upon a trial to the court, Williams, J., the petitioner was nonsuited for having failed to make out a prima facie case, from which judgment it appealed. No error.

Action to establish an alleged lost and uncertain boundary line between adjoining proprietors, brought to the Superior Court in New Haven County where a demurrer to the answer was overruled {Bennett, J.) and the cause was afterward referred to a committee who found and reported the facts; the court, Greene, J., accepted the report and rendered judgment for the defendant, from which the plaintiff appealed. No error.

Action to recover damages for wrongfully and fraudulently appropriating and converting the model of an invention known as a pencil sharpener, which the plaintiff had perfected and was about to patent, and for an injunction and other equitable relief, brought to and tried by the Superior Court in Fairfield County, Burpee, J.; facts found and judgment rendered for the plaintiff for $2,000 damages, together with an injunction restraining the defendant from transferring said…

Appeal by the plaintiff from an order and decree of the Court of Probate for the District of Bridgeport authorizing and directing the defendant administrator to sell a portion of the real estate of his intestate, taken to and tried by the Superior Court in Fairfield County, Hólcomb, J.; facts found and judgment rendered in favor of the defendant, dismissing the appeal and confirming the order of the Court of Probate, and appeal by the plaintiff. No error.

Action to enforce the specific performance of an oral contract for the sale of real estate, and for other equitable relief and damages, brought to and tried by the Superior Court in Fairfield County, Burpee, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff. Error in part.

Action to foreclose a judgment-lien and to have certain transfers of the land upon which said lien rested set aside as fraudulent and void as against the plaintiff creditor, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff. Error and cause remanded.

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 the plaintiff was nonsuited in a trial to the jury before Williams, ./., from which judgment he appealed. Error and new trial ordered.

Action by a trustee in bankruptcy to recover damages for the alleged conversion of an electrical apparatus in an opera house or theatre, brought to the Superior Court in New Haven County and tried to the jury before Gager, J.; the jury returned a verdict for the defendant, by direction of the court, and from the judgment thereon the plaintiff appealed. No error.

Action to recover damages for the breach of an alleged stock-subscription agreement, brought to the Superior Court in New Haven County and tried to the jury before Gager, J.; by direction of the court the jury returned a verdict for the defendant, and from the judgment thereon the plaintiff appealed. No error. The plaintiff is the trustee in bankruptcy of the Grand Opera House Company, Incorporated.

Suit to set aside a tax levy and sale of real estate and a deed given pursuant thereto, and for other relief, brought to and tried by the Court of Common Pleas in New Haven County, Wolfe, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. Error and judgment reversed.

Actioh 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 Reed, J.; verdict and judgment for the plaintiff for 14,000; motion to set aside verdict and appeal by the defendant. No error. The jury might have found these facts: The defendant owned and operated a factory.

Action to recover the reasonable value of services rendered as an attorney at law in the collection of a claim,-brought to and tried by the Superior Court in Fairfield County, Reed, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff. Error and new trial ordered. The plaintiff is an attorney and counselor at law, and has been engaged in the general practice of his profession at Stamford for over fifteen years.

Action to recover damages for breach of a covenant against incumbrances, brought to the Superior Court in New London County and tried to the jury before Shumway, ./.; verdict and judgment for the plaintiffs for $168, and appeal by the defendant. No error.

Action upon a probate bond to recover damages for an alleged wrongful payment by a trustee to a legatee of accrued interest on the amount of his legacy, brought to and tried by the Court of Common Pleas in New London County, Waller, J.; facts found and judgment rendered for the plaintiff for $257.76, and appeal by the defendants. Error and judgment for defendants directed. The will of Seth.

Suit to restrain the defendant from digging up the streets in which the plaintiff’s water mains were laid, from laying any of its own pipes therein over, under, or near those of the plaintiff, and from otherwise interfering with the alleged rights of the plaintiff, brought to and tried by the Superior Court in Litchfield County, Greene, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. No error.

Petition for the appointment of appraisers to estimate the amount of compensation which the defendant landowner should receive for the taking of his land for reservoir purposes, brought to and heard by the Hon. William S. Case, a judge of the Superior Court, who sustained a demurrer to, and dismissed, the petition, from which judgment the plaintiff appealed. Error and judgment reversed.

Action to restrain the defendants from constructing a railway on land claimed to belong in equity to the plaintiffs, for a decree vesting the title to such land in the plaintiffs, and for damages, brought to and tried by the Superior Court in New Haven County, Reed, J facts found and judgment rendered for the defendants, and appeal by the plaintiffs. Error and judgment reversed.

Action for libel, brought to the City Court of New Haven and tried to the jury before Hoyt, J.; verdict and judgment for the 'defendant, and appeal by the plaintiff. No error. The complaint contains three separate counts in libel and one in slander. The plaintiff and his helper worked in and about the house of the defendant’s husband for some weeks. During this time a sum of money was missed which afterward reappeared.

Suit to enjoin the defendant, as tax collector of the town of Groton, from selling for taxes certain land alleged to be owned and used by the plaintiff as a public ferry-landing,, 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. No error.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence in failing to provide safe and proper seats in its theatre, brought to the Superior Court in New London County where the plaintiffs were nonsuited in a trial to the jury before Curtis, J., from which judgment they appealed. No error.

Counter actions by partners each asking for an accounting and a recovery of the sum found to be due thereon, and one of them praying for the appointment of a receiver, brought to the Superior Court in New Haven County and referred to a committee who found and reported the facts, showing a balance due to Ferguson of $5,718; to the acceptance of this report Crippsfiled a remonstrance which the court, Curtis, J., overruled, and, after a motion to file additional grounds of…

Action against the payee and accommodation indorser of a negotiable promissory note, brought to and tried by the Superior Court in New London County, Ralph Wheeler, J.; facts found and judgment rendered for the plaintiff for $1,540, and appeal by the defendant. No error.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s reckless and dangerous driving of his automobile, and by violations of the law of the road, brought to the Superior Court in Litchfield County and tried to the jury before Burpee, J.; verdict for the plaintiff for $1,000, which the trial court doubled upon motion of the plaintiff, from which judgment the defendant appealed.

Action to recover an alleged balance due for work and labor and materials furnished in building a highway retaining-wall, brought to and tried by the Superior Court in Windham County, Gager, Jfacts found and judgment rendered for the plaintiff for $2,103, and appeal by the defendant. No error.

<p>Appeal from an order and decree of the Court of Probate for the district of Hartford distributing the assets of the insolvent estate of a copartnership and those of its individual members, taken by the plaintiff, a partnership creditor, to, and reserved by, the Superior Court in Hartford County, Holcomb, J., for the advice of this court. Judgment advised for the plaintiff.</p> <p>The estates of Hubbard and Farmer, a copartnership, and of William D. Hubbard and R. W. Farmer, its two copartners, have been in the process of settlement as insolvent estates in the Court of Probate for the district of Hartford since 1887. They are now ready for final distribution. The assets of the partnership available for distribution amount to$24;609:24;-those-ofthe separate estate of Hubbard to $2,609.07; and those of the separate estate of Farmer to $5,053.58. The claims allowed against the copartnership amount to $432,465.17. Among these claims is one of $273,046.94 in favor of the estate of C. N. Beach, deceased, of which the appellant is administrator. The claims allowed against the separate estates of Hubbard and Farmer amount to $13,934.29 and $17,130.29, respectively. Among the claims against the estate of Hubbard is one of $9,525 due the estate of Beach, and among those against the estate of Farmer are two, amounting to $14,080, in favor of the Charter Oak National Bank of Hartford.</p> <p>The Court of Probate, in its order of final distribution, directed that the partnership assets should be ratably divided among the partnership creditors, and the assets of each of the separate estates among the individual creditors of such estate. The dividends thus ordered to be paid amounted to 5.55 per cent, to the partnership creditors, 18 per cent, to the separate creditors of Hubbard, and 29 per cent, to the separate creditors .of Farmer. The Charter Oak National Bank appeared in support of the order of distribution.</p>

Indictment for murder in the first degree, brought to the Superior Court in Fairfield County and tried to the jury before Case, Jverdict and judgment of guilty, and appeal by the accused. Error and new trial ordered.

Action to recover rent, brought by appeal from a judgment of a justice of the peace to the Court of Common Pleas in Fairfield County and tried to the court, Scott, Jfacts found and judgment rendered for the defendant on his counterclaim, and appeal by the plaintiff. No error. The defendant also appealed upon the ground that the judgment should not have required him to pay interest upon the amount tendered by him to the plaintiff. No error.

Action to recover damages for an alleged wilful and malicious assault upon the plaintiff’s intestate resulting in his death, brought to the Superior Court in New Haven County where the trial court, Gager,./., directed a verdict for the defendant, from the judgment upon which the plaintiff appealed. Error and new trial ordered.

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.; verdict and judgment for the plaintiff for $2,000, and appeal by the defendant. Error and new trial ordered.

<p>An addition to a building is one of “its appurtenances” within the meaning of that expression in General Statutes, § 4135, which authorizes a lien for material furnished or services rendered in the construction of a “building, or any of its appurtenances.”</p> <p>A sale of real estate by its owner after a mechanic’s lien has attached but before a certificate thereof has been filed for record, does not affect ■ the validity of the lien; nor does it estop the materialman from subsequently-foreclosing his, lien to secure payment of his claim, in the absence of any evidence of acts or conduct upon his part which were calculated to mislead or deceive the purchaser respecting the existence of the lien.</p> <p>The question whether a materialman has waived his right to a lien b,y taking a note from the owner of the property for the amount due, depends upon whether the note was given and accepted by the parties in payment of the debt or not, and this is a question of intention for the determination of the trial court, whose finding thereon is conclusive.</p>

Action upon a receipt given to an officer for property attached, brought to and tried by the Superior Court in New Haven County, Holcomb, J.; facts found and judgment rendered for the plaintiff for $601, and appeal by the defendant. No error.

Action under the so-called Federal Employers Liability Act to recover damages for causing the death of the plaintiff’s intestate by negligence, brought to the Superior Court in New Haven County and tried to the jury before Shumway, Jverdict and judgment for the plaintiff for $5,000, and appeal by the defendant. Error and new trial ordered.

■ Action to recover the amount of a savings-bank deposit, brought to the Court of Common Pleas in New Haven County and tried to the jury before Wolfe, J.; verdict and judgment for the plaintiff for $743, and appeal by the defendant. No error.

; facts found and judgment rendered reversing the decision of the county commissioners, and appeal by Joseph Quint, the applicant for the transfer. No error.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant’s servant, brought to the Superior Court in Fairfield County and tried to the jury before Burpee, J.; verdict and judgment for the plaintiff to recover $2,000, and appeal by the defendant. No error.

<p>A testator who owned an interest in real and personal property subject to the life use of another who survived him many years, after disposing of a portion of the interest to a hospital, directed that the balance, upon the termination of the life estate, should “be paid over to and divided equally among my then living, lawful heirs” in fee. Held that the “then living, lawful heirs” were the heirs of the testator, ascertained as of the date of his death, who might be living at the time of the life tenant’s decease; and that as thus construed the clause was not in violation of the statute against perpetuities which was in force in 1893 when the testator died.</p> <p>“Heirs” prima facie mean those who are entitled to inherit from an intestate.</p> <p>A construction which gives validity and effect to a clause in a will and avoids intestacy, if reasonable, should be favored.</p> <p>Where the cause is ready for final judgment in the trial court, counsel need not file the stipulation which would otherwise be required for a reservation for advice under the rules of this court, Practice Book, p. 286, §§ 70-72.</p>

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in suddenly starting its car from which the plaintiff'was alighting, brought to the Superior Court in Fairfield County and tried to the jury before Bur-pee, J.; verdict and judgment for the plaintiff for $7,000, and appeal by the defendant. No error.

Action of replevin for machinery sold to the defendant Brick Company on condition, brought to the Superior Court in Hartford County where a demurrer to the plaintiff’s reply was sustained (Holcomb, J.) and judgment rendered for the defendant, from which the plaintiff appealed!. Error and new trial ordered.

Action upon a contract for the future support and maintenance of the plaintiff in lieu of permanent alimony, in case a divorce should be granted, brought to the Superior Court in New Haven County where a demurrer to the complaint was overruled {Gager, J.) and the cause was afterward tried to the court, Williams, J.; facts found and judgment rendered for the plaintiff for $3,573, and appeal by the defendant. No error.

Suit to determine the construction of the will of Edward W. Marsh of Bridgeport, deceased, brought to and reserved by the Superior Court in Fairfield County, Greene, J., upon the facts alleged in the complaint, for the advice of this court. Edward W. Marsh, late of Bridgeport, died January 23d, 1913, leaving a widow, no lineal descendants, and a will executed August 5th, 1912, which was duly probated.

<p>Having once made a finding of facts underlying an interlocutory decree for an accounting, pursuant to a request of the defendant under ' General Statutes, § 763, the trial court is not required, by the provisions of § 792 and a request of the defendant thereunder, to make another finding covering the same ground after the accounting has been had and final judgment rendered.</p> <p>In the absence of the evidence, objections to findings of fact contained in the judgment-file are unintelligible and cannot be considered by this court on appeal.</p> <p>In the present case the lessee of a farm, who had agreed “to be liable for the number of cattle mentioned” in the lease, sold some of them and bought other's, though fewer in number. Held that the accounting, from which no appeal was taken, had adjusted and satisfied any liability which the lessee had incurred for any breach of this agreement.</p> <p>The persistent neglect and refusal of the lessor of a farm to perform his covenant to construct a dwelling-house thereon, to repair the other buildings, and to furnish the lessee with tools necessary to till the farm, in consequence of which it could not be worked at a profit, entitles the lessee to treat such breach as an attempted repudiation of the lessor’s contract obligations in these respects, and gives him the right, at his option, to put an end to the continuance of the contract, without prejudice to his claim to recover damages for its breach.</p> <p>In the present case the trial court found that the lessees by bringing the suit had rescinded and intended to rescind the contract. Held that in the light of this fact their prayer for a cancellation of the contract was to be construed in its literal sense.</p> <p>A clause in the lease provided that the plaintiff lessees, who had deposited $2,000 with the defendant lessors as security for the performance "of their covenants, should have a lien on the farm and buildings for that amount, which should be treated as if it were a duly-recorded mortgage. Held that this entitled the plaintiffs, upon the expiration of the lease or its sooner determination without their fault, to retain p'ossession of the premises as security for the return of their deposit; and that in default of such return they were, when their action was begun, in possession not as tenants but as mortgagees, and were not obliged, therefore, to deliver up possession to the defendants before commencing suit for damages and for a foreclosure of their mortgage.</p> <p>One of the defendants, who took a deed of the premises after the making of the lease in question, demurred to the complaint substantially upon the ground that it set forth no cause of action against him. Held that inasmuch as his deed was upon its face subject to the terms of the lease, his demurrer was properly overruled, and especially so, since it was found that his deed was without consideration and was given and received to defeat the fulfilment by the other defendant of his obligations under the lease.</p>

Action to recover damages for wrongfully depriving the plaintiff of the comfort, society and services of his wife and the loss of her love and affection, brought to the Superior Court in New Haven County and tried to the jury before Bennett, J.; verdict and judgment for the defendant, and appeal by the plaintiff. No error.

Action to recover for the attendance and services of a city fireman at the defendant’s theatre, brought to and tried by the City Court of Hartford, Bullard, ,/.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. No error.

<p>The operation of a motor-vehicle by an unlicensed person sixteen years old or more is allowable under § 5 of chapter 85 of the Public Acts of 1911 when such person is “accompanied by” a licensed operator.</p> <p>Held that a compliance with this provision required that the licensed operator should be in such proximity to the unlicensed driver of the car as to be able to furnish, with reasonable promptness, such advice and assistance as might be necessary for its safe operation; and that the question whether this requirement was or was not satisfied by the presence of a licensed chauffeur on the rear seat of the car, was one of fact for the ultimate decision of the jury upon all the attendant circumstances, and not one of law for the court.</p>

William S. Case, a judge of the Superior Court, who sustained the defendant’s demurrer and dismissed the application, from which the plaintiff appealed. No error. The petitioner was incorporated by a Special Act of 1911 under the name of “Thames College.” Its sole and exclusive purpose is to establish and maintain an institution for the higher education of women.

Action based upon a statute of Massachusetts to recover damages for personal injuries received in that State and resulting in the death of the plaintiff’s intestate, a resident of Massachusetts, and alleged to have been caused by the negligent operation by the defendant of his automobile, brought to the Superior Court in New Haven County where a demurrer to the complaint was sustained (Reed, J.) and thereafter judgment rendered (Burpee, J.) for the defendant, from which the…

<p>General Statutes, § 2315, as amended by chapter 184 of the Public Acts of 1911, prescribes that “buildings” belonging to and used exclusively for scientific, literary, benevolent or ecclesiastical societies, shall be exempt from taxation, provided that such exemption shall not include the “real estate” of any such association or corporation as is leased or used for other than its “specific purposes.” Held that in view of the plain implication of the statute to exempt such real estate of an educational and benevolent corporation as was used for its specific purposes, and of our long-established public policy and practice in harmony therewith, the word “buildings” was to be construed as including not only the land upon which they stood but such an amount of appurtenant or adjoining land as might be reasonably necessary for the specific purposes of the corporation, and embracing, in the present case, a piece of land used as a campus and playground for the scholars of the school maintained by the plaintiff, but excluding land used for agricultural purposes, although its products were consumed in and about the school, and excluding, also, cottages occupied by employees who looked after the school buildings, grounds and live stock.</p> <p>A judgment which finds the issues for the plaintiff necessarily establishes the truth of all the material allegations of the complaint.</p> <p>In the present case the judgment-file contained a recital to the effect that the real estate in question—which was alleged to be owned by the plaintiff and to have been wrongfully assessed for taxes—was used exclusively for scientific, ■ literary, and benevolent purposes, but no express, specific statement that the plaintiff owned the property. Held that the general finding of the issues in favor of the plaintiff was a sufficient adjudication of its title to the property.</p>

<p>Alternative writ of mandamus requiring the respondent to allow the relator, one of its stockholders, to inspect its stock books for the purpose of obtaining the names and addresses of its stockholders, or to show cause to the contrary, brought to and tried by the Superior Court in Hartford County, Holcomb, J., upon demurrer to the respondent’s return; the court sustained the demurrer and rendered judgment in favor of the relator, from which the respondent appealed. No error.</p> <p>The pleadings show that the relator is a stockholder of the defendant corporation, that he has made demands to be permitted to examine its books for the purpose of obtaining the names and addresses of its stockholders and the number of shares held by each, and that these demands have been refused. The return sets up matters affecting the relator’s motive and purpose in making these demands, as furnishing a sufficient reason why the peremptory writ asked for should not issue. These matters stand admitted by the demurrer. The allegations in substance are that the relator has no interest in the corporation or in its stockholders as a bona fide investor; that his only interest therein is that of a broker and trader; that he acquired his stock not for purposes of investment as a bona fide stockholder but as a broker merely and for the speculative purpose of trading therein for profit; that he does not seek the information desired for the protection of any interest he has as a stockholder or for any purpose germane to such interest; that he seeks it solely that he may be enabled to trade in the shares of the corporation for his own personal profit and at its expense; and that the information sought has a commercial value as an investment list and is salable to be sent broadcast over the country, a use detrimental to the corporation and to its stockholders.</p>

<p>Action to recover damages for false and fraudulent representations, brought to the Superior Court in Hartford County and tried to the jury before Case, J.; verdict and judgment for the plaintiff for $280, and appeal by the defendant. No error.</p>

<p>To overcome or rebut the common-law presumption that a judgment twenty years or more old has been paid, it is not essential that there should be proof of an acknowledgment and new promise such as might be required to removed the bar of the statute of limitations; any legal evidence which satisfies the trier that the debt is still unpaid is sufficient to warrant a recovery by the plaintiff.</p> <p>In the present case the trial court found that the judgment had never been paid, but it did not appear from the finding that any demand had been made upon the judgment debtor, that he had expressly recognized the indebtedness, or that he was insolvent. Held that while these considerations tended to fortify the presumption of payment, they did not render such presumption conclusive nor were they necessarily inconsistent, as matter of law, with the conclusion that the judgment had not in fact been paid.</p>

Action by the assignee of a policy of life insurance to recover its withdrawal cash value at the termination of the tontine dividend period, brought to the Superior Court in Hartford County where a demurrer to the reply was overruled, Greene, J., and the cause was afterward reserved by the court, Holcomb, J., upon an agreed statement of facts, for the advice of this court. Judgment advised for plaintiff.

Petition for the appointment of appraisers to estimate the amount of compensation which should be paid to the respondent for taking a strip of his land for the purpose of constructing and maintaining a line of water pipes therein, brought to the Hon. William S. Case, a judge of the Superior Court, who overruled a demurrer to the petition and rendered judgment for the petitioner, from which the respondent appealed. No error.

Suit to determine the validity and construction of certain provisions in the will of Lorenzo Blackstone of Norwich, deceased, brought to and reserved by the Superior Court in New London County, Shumway, J upon the facts alleged in 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 in running his automobile into and over the plaintiff, brought to the Superior Court in New Haven County and tried to the jury before Gager, J.; verdict and judgment for the plaintiff for $700, and appeal by the defendant. No error.

<p>Suit to restrain the defendant from removing an ice-house standing on land owned by the plaintiff, brought to and tried by the Court of Common Pleas in New Haven County, Wolfe, facts found and judgment rendered for the defendant, and appeal by the plaintiff. No error.</p> <p>On October 1st, 1900, one Tuttle leased a pond upon his premises to the defendant, The Milford Ice Company, for five years, with the privilege of cutting and storing ice therefrom, together with sufficient land on which the Company could erect ice-houses for the storage of the ice so cut. The lease further provided that, if it were not renewed, the lessee should have the right to remove such ice-houses within ninety days from the expiration of the lease.</p> <p>The Company took possession under the lease and erected an ice-house as provided in the lease. The lease was extended by oral agreement from year to year until October 1st, 1907, when the parties entered into a written lease, for the term of three years, of the pond, with the privilege of cutting and storing ice from the pond, and also for a lease of “the land on which is now located the ice-house owned by the lessees,” and providing that, if the lessor should sell the land leased, the lease should expire on the first of October following such sale, and the lessees should have ninety days from that date to remove the ice-house. David J. Greene, the treasurer and manager of the Company, had acted for it in making the last-named lease. On the expiration of this lease on October 1st, 1910, Mr. Greene, acting for the Company as its treasurer and general manager, negotiated for a renewal of the lease, and the Company, acting by Mr. Greene, and Mr. Tuttle, the owner and lessor, by oral agreement extended the lease for one year.</p> <p>March 21st, 1911, Mr. Tuttle conveyed his farm, with the premises included, to the plaintiff. At this time the Company was in possession of the premises leased to it, and so remained until October 1st, 1911, the date of expiration of its lease.</p> <p>The plaintiff knew of the erection of the ice-house by the Company and knew, prior to and at the date of purchase, that the Company was in possession of the premises under lease, and claimed to own the ice-house and to have the right to remove it, but he was informed by Mr. Tuttle that he did not think it owned the ice-house. So far as appears, the plaintiff made no effort to learn from the Company what its claim was, although inquiry might easily have been made.</p> <p>The Company, through its treasurer and general manager, in May, 1911, offered to pay the plaintiff the rent to become due under the lease; the plaintiff refused it, and denied the rights of the Company in and to said premises.</p> <p>On September 20th, 1911, Hall and Ryder, acting under the orders of Mr. Greene, began to tear down the ice-house, when they were enjoined from so doing upon complaint of the plaintiff herein against them and Greene. The defendants made answer admitting the acts of alleged trespass, and justifying as the servants and agents of the Company, alleging its possession of said premises and its right to remove the ice-house within ninety days from the expiration of the lease. Upon a hearing of the cause on the merits,'the court found the issues in favor of the defendants and rendered judgment for them, and dissolved the, injunction. Immediately after the judgment the Company began preparations to remove this building, when the present action was begun. The Company ceased its work of removal under an agreement with the plaintiff to await the outcome of the present action and without prejudice to its rights in the premises.</p> <p>To the complaint herein, alleging that the Company threatens to tear down and remove this ice-house, the Company made answer, admitting the threatened acts as charged, and justifying the same as done under its lease, and alleging its possession of the premises under its lease and its ownership of the ice-house and the knowledge of such possession and ownership by the plaintiff; and, further, that its right to remove the ice-house had been determined in the first action brought by this plaintiff against Greene, Hall, and Ryder, its servants and agents.</p> <p>The trial court held that at the date of issuance of the writ and complaint in this action, and at the date of entry of judgment thereon, the Company had the right to remove the ice-house, and that its failure to remove it within the period provided in the lease was due to the injunction issued in the first action, and that the plaintiff was not entitled to the equitable relief sought; and, further, that the judgment in the first case referred to operated as an estoppel in favor of the defendant herein and against the right of the plaintiff to retry the issue of the Company’s right to remove the ice-house.</p>

<p>A title de facto is sufficient to vindicate the acts of a judge as to third persons and the public, when his right to the office is collaterally questioned; but when it is directly challenged by the State upon an information in the nature of quo warranto, the burden is upon him to show that he is a de jure officer.</p> <p>Under the Constitution of this State (Article Fifth, § 3, and Article Twenty of the Amendments) judges of city and police courts are to be “appointed by the General Assembly” and “for terms of two years.” Held,:—</p> <p>1. That an appointment of the judge of a police court for two years from a certain date “and until his successor is duly appointed and qualified,” was an attempt to extend the term beyond the constitutional limit, and was therefore null and void.</p> <p>2. That the fact that the charter of the city also provided that the judge of its police court should hold office for the term of two years “and until his successor shall be duly appointed and qualified” (1(> Special Laws, p. 134), was equally ineffective to extend the two-year term prescribed by the Constitution.</p> <p>3. That while the incumbent of such an office, upon the expiration of his two-year term, might properly hold over in the interest of the public until the appointment of his successor, he would not thereby become a de jure officer, nor would such temporary occupation prevent the existence of a vacancy and the filling oij the office by the duly-empowered authority.</p> <p>4. That the purpose of chapter 233 of the Public Acts of 1907, prescribing that while the General Assembly is not in session and the filling of vacancies is not otherwise provided for, the Governor may fill any vacancy, however arising, in all offices originally filled by the General Assembly or either branch thereof, until the third Wednesday of the next session of the General Assembly,—was plainly to have every office supplied with a de jure incumbent, and that the Act applied as well to an office occupied by a holdover or de facto officer as to cases in which, by reason of death or resignation, the office was left without any incumbent.</p> <p>5. That the constitutional mandate (Article.Fifth, § 3) requiring judges to be appointed by the General Assembly was not applicable to appointments made to fill vacancies in these offices, and therefore the Act of 1907, in so far as it authorized the Governor to fill such vacancies, was not unconstitutional.</p> <p>In making an appointment under this Act the Governor is not bound to wait until the vacancy, sure to occur, actually exists, before designating his appointee, but may anticipate that event, provided ■ his own term of office does not expire before the appointment takes effect.</p> <p>The charter of the city of Hartford (7Special Laws, p. 434) provided that the associate judge of the police court—who was appointed with and for the same term as the judge—should perform the duties and be vested with all the powers and functions of the judge of said court whenever there should be a vacancy in the office of said judge, and in case of his absence or disability. Held that this had reference to vacancies occurring during the term of the judge, but not one to occur upon, or after, the expiration of his term and that of his associate.</p> <p>In the eye of the law an office is “vacant” when it is not filled by a de jure incumbent, and the word is so used in the Act of 1907.</p>

Action to recover damages for the loss of several heifers through the alleged failure or neglect of the defendant to keep a division fence in repair, 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 $209, and appeal by the defendant. Error; judgment directed for defendant. The defendant and one Woodruff were owners of adjoining tracts of land in Guilford.

<p>The plaintiff, who was engaged in the jobbing and repairing business of cutting and welding metals by the so-called Oxy-acetylene or oxycarbide process, adopted, registered and used as a form of advertisement the catch-phrase “Send it to Oxy,” and as a result was generally known in the trade and among his customers as “Oxy.” The defendant, a competitor on the same street, displayed a new sign on the front window of his shop, reading OXY Acetylene Welding & Cutting, whereupon the plaintiff’s business fell off about fifty per cent, while this sign was displayed and began to recover as soon as it was taken down. In a suit to recover damages it was held:—•</p> <p>1'. That while not a technical trade-mark, the phrase “Send it to Oxy” was a distinctive form of advertisement which had come to be associated with the plaintiff, who was entitled to protection against any unfair appropriation of it by the defendant.</p> <p>2. That the only practical test of infringement or unfair appropriation in cases of this kind was the actual or probable result of the defendant’s conduct, which, in the present case, was certainly likely to deceive persons who were looking for the plaintiff, and to cause him to lose their patronage.</p> <p>3. That standing alone and unexplained, the evidence of the plaintiff’s loss of business and its cause made out a prima facie case of actionable wrong and resultant damage, and therefore he should not have been nonsuited.</p>

Action to foreclose a mortgage of real estate, brought to the District Court of Waterbury and transferred on motion of one of the defendants to the Superior Court in New Haven County where the cause was tried to the court, Reed, J.; facts found and judgment rendered for the plaintiff against all the defendants, and in favor of the defendants Clark and Howshield against the defendant Curtis, from which the latter appealed. Error and cause remanded.

Information for manslaughter, brought to the Superior Court in Fairfield County and tried to the jury before Curtis, J.; verdict and judgment of guilty, and appeal by the accused. No error.

<p>As suggestive of undue influence arising from a confidential relation between a testator and the beneficiary of his will, there is a broad distinction to be observed between those who are strangers and those who are members of a family, as father and son. In the latter case the confidential relation is but natural and can furnish no ground for an inference or presumption of the exercise of undue influence.</p> <p>The facts in the present case briefly reviewed and a special finding of the jury of the existence of undue influence held not to be supported by the evidence.</p> <p>The mere execution of a later will which contains no revoking clause does not operate to revoke the prior will; for until the testator’s death the last will is wholly ambulatory.</p> <p>One who contests a will on the ground that it has been revoked by a later one, which was subsequently destroyed, has the burden of showing that the later will contained a revoking clause.</p> <p>Whether, if this were shown, the subsequent destruction of the later will with intent to revive the former would be effectual without its republication, qucere.</p> <p>In the present case the only testimony as to a revoking clause was that of the attorney who drew the will, who stated that he had no recollection whatever on the subject, but that he did insert such clauses more often than not. Held that this was an insufficient basis for a finding by the jury that the later will contained such a clause.</p>

<p>The question whether a homicide is reduced from murder to manslaughter by the provocation arising from a previous combat between the parties, is to be determined from the particular circumstances of each case, including the nature of the act by which death was caused, the time which elapsed between the provocation and that act, and the conduct of the accused during that time. No definite period of time can be laid down by the court, as matter of law, within which one’s passions must be held to have subsided and reason to have resumed its control. If, however, there was sufficient time for the anger of the accused to cool down before the homicide, the crime is murder, though his anger had not in fact subsided.</p> <p>It is for the jury to determine the credibility of witnesses whose testimony is conflicting, and to render a verdict accordingly.</p> <p>In the present case the account of the circumstances attending the homicide, as given by the accused, would have made it manslaughter, while the testimony of an apparently disinterested bystander tended to show that the crime was murder, and the jury returned a verdict of guilty of murder in the second degree, which the trial court refused to set aside. Held that it was for the jury to pass upon the conflicting testimony and determine whether the crime was murder or manslaughter, and that it could not be said that their verdict was not warranted by the evidence.</p> <p>Chapter 223 of the Public Acts of 1909, § 2, prescribes that before each jury term of the Superior Court the clerk shall draw from a suitable number of jury boxes, “in a manner to ensure a reasonable distribution of jurors among the several towns,” the names of eighteen jurors, and § 663 of the General Statutes declares that the Superior Court “may at any time at its discretion order the drawing of a sufficient number of additional jurors to prevent the necessity of summoning talesmen.” Held that the power of determining' the locality from which jurors should be drawn was, by implication, vested in the presiding judge, and that his order to the clerk, when summoning additional jurors, not to draw any from the town in which the homicide was committed and the prisoner and his victim resided, was in the interest of justice and could not have been harmful to the accused.</p> <p>The object of this law is to secure jurymen who will impartially hear the evidence and render a verdict thereon uninfluenced by extraneous circumstances.</p>

Information in the nature of quo warranto to determine the title of the respondent to the office of county commissioner of Hartford County, brought to and reserved by the Superior Court in Hartford County, Case, J., upon an agreed statement of facts, for the advice of this court. Judgment advised for the State.

Suit to restrain the defendant, a constable, from selling on execution a share of corporate stock which the plaintiff claimed to own, though standing of record in the name of one to whom the plaintiff had transferred it in order to qualify him to become a director, brought to and tried by the Superior Court in Hartford County, Holcomb, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. Error and new trial ordered.

Writ of error to reverse an alleged judgment of the Superior Court in Hartford County, Ralph Wheeler, J., rendered in receivership proceedings, allowing a claim of the defendants in error amounting to $1,480, for damages arising from the refusal of the plaintiffs in error, as receivers of the Windsor Locks Savings Bank, to continue to pay rent under a ten-year lease made by the bank, brought to the Supreme Court of Errors in the first judicial district at its October term,…

Action to recover damages for obstructing a pass-way, and for an injunction, brought to the Superior Court in New London County and tried to the jury before Shumway, ./.; verdict and judgment for the plaintiffs, and appeal by the defendant. Error in part.

<p>Action to recover damages for personal injuries 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 Curtis, J.; verdict and judgment for the plaintiff for $8,500, and appeal by the defendant. Error and new trial ordered.</p> <p>The plaintiff’s alleged cause of action is based upon the claim that when she was injured she was rightfully upon the tracks of the defendant company. The negligence alleged was the failure to provide a flagman, gates, or other proper means to warn the plaintiff of approaching trains; an excessive rate of speed; a failure to keep a proper lookout by the engineer; and neglect to sound the whistle and ring the bell upon the engine.</p> <p>The evidence before us, including photographs and maps, shows these facts: On February 1st, 1909, the plaintiff was injured by being struck by the engine of a passenger-train while upon the railroad tracks of the defendant company in the westerly part of the city of New London. The accident occurred at a grade-crossing known as the “Lumber Yard Crossing,” which leads from the land and wharves of the Chappell Company on the east side of the railroad company’s tracks to the land and office of the Chappell Company and Bank Street on the westerly side of the railroad.</p> <p>The land now owned by the Chappell Company, prior to the construction of the railroad, was owned by John W. and Benjamin F. Brown, and comprised a piece of land fronting on the Thames River and Bank Street. On the river front was a wharf and docks, and between the wharf and Bank Street there was about an acre and a half of land used by the Browns in carrying on a coal and wharfage business. In June, 1851, the Browns conveyed, for railroad purposes, to the New Haven and New London Railroad Company, a strip of this land twenty-five feet wide, running through this property and separating the wharf from the land lying westerly of the strip conveyed, and rendering it inaccessible except by crossing the strip of land transferred to the railroad company. This land was conveyed by a warranty deed, which provided, among other things, that it should be used for the purposes of a railroad, “and for no other use and purpose whatever.” It further provided as follows: “And we reserve to ourselves the privilege of crossing, and recrossing the said piece of land above described or any part thereof within said bounds.” The defendant is the successor of the grantee in this deed, and entitled to all the rights under the same which the grantee had thereunder. The Chappell Company now owns the premises formerly owned by the Browns, and is entitled to all the rights in the strip conveyed which attached to this land belonging to the Browns. The right of crossing mentioned in the deed was not definitely located in this conveyance, but the Chappell Company adopted and used three crossings at grade; the westerly one being known as the “Soft Coal Crossing,” the middle crossing being known as the “Lumber Yard Crossing,” and the third and easterly one being known as the “Hard Coal Crossing.”</p> <p>The railroad runs through the Chappell land on a sharp curve bearing toward the harbor. The railroad tracks at this point run substantially east and west. On the harbor side of the tracks at the Lumber Yard Crossing there is a picket fence about six feet six inches in height, and about five feet distant from the nearest rail. On the Bank Street side of the tracks the distance from the nearest rail to the fence varies from sixteen feet at Sparyard Street to six feet at the Lumber Yard Crossing. On the north side of the railroad and at a point forty-four feet easterly from Sparyard Street, there was a warning signal which had been maintained for a long time and which was in plain view from the footbridge and from points easterly of the footbridge. This sign was set upon a post about five feet high, with the following words in plain, large letters: “Trespassing on the tracks forbidden. N. Y., N. H. & H. R. Co.”; and on the reverse side the words: “All persons are forbidden walking on the tracks and grounds of this company. N. Y., N. H. & H. R. Co.”</p> <p>Regular trains were passing through the property of the Chappell Company at least every hour, and at certain periods in the day there were also switches of freight-cars every twenty to thirty minutes from the different yards of the railroad company, which yards were located on both sides of the Chappell land.</p> <p>For many years, in the use of its premises, the Chappell Company had maintained buildings close up to the railroad company’s right of way, and, instead of passing indiscriminately back and forth from the dock property, the Chappell Company had used the three ways of access by planked crossings. These crossings were for its use, and were kept planked by the railroad company. The Chappell Company was doing an extensive business in coal and lumber, and its docks were in almost constant use by boats landing there the Chappell Company’s coal and lumber. For at least fifteen years prior to the accident in question, these crossings had been quite extensively used by the employees and teams of the Chappell Company and by other persons and teams going to and from the docks and boats of the company. At the intersection of the Lumber Yard Crossing with Bank Street the Chappell Company maintained gates. The three crossings across the defendant company’s tracks were equipped with gates by the Chappell Company, but they were broken so many times by people crossing back and forth that they were abandoned and a night watchman put on.</p> <p>The plaintiff was injured at the Lumber Yard Crossing, by one of the regular passenger-trains of the defendant company. For three years she had lived near the freight-yard of the defendant west of Shaw’s Cove, and knew that trains were frequently run over the tracks through the Chappell land. About five o’clock in the afternoon of February 1st, the weather being pleasant, Mrs. Whitney, then aged thirty-six years, in good health, and in the full possession of her faculties, started on foot from a house where she lived west of Shaw’s Cove to go to the Union Station. She walked on the footbridge across Shaw’s Cove and reached Sparyard Street, intending to go up Sparyard Street to Bank Street. Being prevented from going through Sparyard Street, she started up the railroad track intending to reach Bank Street by the use of the railroad tracks and one of the Chappell crossings. Before she started from Sparyard Street she saw a freight-train coming toward her from the east. She walked on the north side of the track a distance of about fifty-four feet toward the approaching freight-train, when she crossed over in front of this train and then walked between the east and west bound tracks until she reached the Lumber Yard Crossing at about the same time as did the freight-engine. She then stepped backward into the yard south of the track at the Lumber Yard Crossing, and waited for the freight-train to pass.</p> <p>The plaintiff’s testimony as to what then occurred is as follows: “Q. Tell the jury what followed. You were there waiting. A. When the freight-train got by, I looked both ways, naturally, towards the water first, and I looked towards the depot, and I saw nothing and heard nothing. 1 started across, and it seemed the instant I took a step it was like a rush, and I was struck, as if somebody hit me beside the head. . . . Q. Where were you standing, Mrs. Whitney, at the time you stated you looked towards the cove and then the other way? A. Right between the posts; a little back from the posts of the gate.”</p> <p>Mrs. Whitney also said, that she went “three or four feet, three or four steps,” from the place where she was standing when she was struck. She neither saw noi heard the approaching train until she was struck. When the train stopped, Mrs. Whitney was lying between the rail and the fence on the harbor side of the track, about twelve or fifteen feet east of the Lumber Yard Crossing. The engine and about two thirds of the baggage-car had passed her.</p> <p>The view of the northerly rail of the easterly track at the Lumber Yard Crossing was very limited to the engineer in his cab, as he approached this crossing from the west, on account of the curve in the track, the buildings and the fence. By order of the railroad commissioners no whistle could be sounded on a passenger-train engine approaching from the west within a distance of nearly a mile west of the Lumber Yard Crossing. The bell was ringing when the accident occurred.</p> <p>The evidence was conflicting as to the speed of the passenger-train just before the accident, but the testimony was not such as to carry conviction to an intelligent or unprejudiced mind that it was excessive or unusual.</p>

Action to recover damages for personal injuries alleged to have been caused by the defendants’ negligence, brought to the Superior Court in New London County and tried to the jury before Williams, J.; verdict and judgment for the plaintiff for $8,500, and appeal by the defendants. No error.

Action in the nature of interpleader to determine the respective rights of the defendants, each of whom claimed to be entitled to a death-benefit fund of $1,000, brought to and tried by the Superior Court in New Haven County, Williams, J.; facts found and judgment rendered in favor of the defendant Terry, from which the other defendant, Towne, appealed. Error in part.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Court of Common Pleas in New Haven County and tried to the jury before Simpson, J.; verdict and judgment for the defendant, and appeal by the plaintiff. Error and new trial ordered.

Suit to compel the dissolution of a corporation and the winding-up of its affairs, for an accounting of rents, the appointment of a receiver, and other relief, brought to and tried by the Superior Court in New Haven County on successive demurrers to the original and substituted complaint; the court, first by Williams, J., and later by Bennett, J., sustained the demurrers and rendered judgment for the defendants, from which the plaintiffs appealed. Error and new trial ordered.

Suit to determine the construction of the will of Mary G. Totten of New Haven, deceased, brought to and reserved by the Superior Court in New Haven County, Gager, J., upon the facts alleged in the complaint, for the advice of this court. Mary G. Totten died in 1875, leaving a will duly probated. By the will she gave the life use of all her property to her sister Charlotte A. Totten and brother Thomas H. Totten and the survivor of them.

Action to recover damages for the obstruction of an alleged right of way and of other rights and easements, and for an injunction, brought to the Superior Court in Fairfield County and tried to the jury before Burpee, J.; verdict and judgment for the defendants, and appeal by the plaintiffs. Error and new trial ordered nisi.

Action by one of several subcontractors to foreclose a mechanic’s lien, brought to and tried by the City Court of Hartford, Bullard, J.; facts found and judgment rendered for the plaintiff, and appeal by Michael J. Bracken, trustee of one Kremendahl, one of the defendants, whose claim of lien was disallowed. Error and cause remanded.

Action to recover damages for the defendant’s alleged breach of contract in refusing to receive electric fuse plugs which it had ordered the plaintiff to manufacture and deliver, brought to the Superior Court in Litchfield County and tried to the jury before Greene, J.; verdict and judgment for the plaintiff for $2,864, and appeal by the defendant. No error.

Action to recover damages for negligently running a trolley-car into and injuring the plaintiff’s mule, brought to the Court of Common Pleas in New Haven County and tried to the jury before Simpson, J.; at the conclusion of the plaintiff’s evidence the defendant rested its case and, by direction of the court, the jury returned a verdict for the defendant, from which the plaintiff appealed. No error.-

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 Reed, J.; the jury returned a verdict for' the plaintiff for $3,000 which the trial court set aside as against the evidence, upon motion of the defendant, from which action the plaintiff appealed. No error.

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 and tried to the jury before Williams, J verdict and judgment for the defendant, and appeal by the plaintiff. No error.

Action of replevin for the recovery of a horse, buggy and harness, brought to and tried by the Court of Common Pleas in New London County, Waller, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. No error.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence in the management and operation of an automobile, brought to the Superior Court in New Haven County where the plaintiff was nonsuited in a trial to the jury before Gager, J., from which judgment he appealed. No error.

Action to recover damages for personal injuries resulting in the death of the plaintiff’s intestate at a railroad crossing and alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Fairfield County and tried to the jury before Reed, J verdict directed for the defendant at the close of all the testimony, and judgment thereon, from which the plaintiff appealed. No error.

Action to recover damages from a physician for alleged malpractice in the treatment of an injury to the plaintiff’s shoulder, caused by a fall, brought to the Superior Court in Fairfield County and tried to the jury before Case, J.; verdict and judgment for the plaintiff for $2,000, and appeal by the defendant. No error.

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 Hartford County and tried to the jury before Case, J.; by direction of the court the jury returned a verdict for the defendant, from the judgment upon which the plaintiff appealed. No error.

Action to recover damages for negligently running into and demolishing the plaintiff’s automobile, brought to the Superior Court in New Haven County and tried to the jury before Bennett, J.; the court directed a verdict for the defendant, from the judgment upon which the plaintiff appealed. No error.

Action, to recover damages for injuries to the plaintiff’s wagon, and for the loss of the services of the plaintiff’s minor son resulting from personal injuries to him, and for medical expenses incurred in his behalf, all 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, J.; the court directed a verdict for the defendant, from the judgment upon which the plaintiff appealed.