Volume 90 — Connecticut Reports

Action to recover damages for an alleged breach of a written agreement for an exchange of real estate, brought to and tried by the Court of Common Pleas in Hartford County, Smith, J.; facts found and judgment rendered awarding $10 only to the defendant, upon his counterclaim demanding $500 as liquidated damages, from which he appealed.

Action to set aside a conveyance of real estate, brought to and tried by the Superior Court in New London County, Bennett, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff.

Appeals by four creditors of the defendant in receivership proceedings pending in the Superior Court in New London County, from decisions of that court, Shumway, J., holding that their claims were not preferred over those of other creditors, and that an alleged lien in favor of one of- the creditors to secure his claim was void.

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 Greene, J.; the jury returned a verdict in favor of the plaintiff for $5,000, which the trial court set aside upon motion of the defendant, and from this action the plaintiff appealed.

Action to recover damages for injuries to the plaintiff’s motor-truck through a collision with a street-railway car of the defendant, which was alleged to have been caused by the negligence of its servants, brought to the Superior Court in New Haven County and tried to the jury before Burpee, J.; the court, upon motion of the defendant, directed a verdict in its favor, and from the judgment thereon the plaintiff appealed.

Action by a passenger upon a trolley-car 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 Gager, Jthe court, upon motion of the defendant, directed a verdict in its favor, from the judgment upon which the plaintiff appealed.

Action to foreclose a mortgage of real estate, given to secure payment of a promissory note of the defendant, brought to and tried by the Superior Court in Fairfield County, Burpee, J.; facts found and judgment rendered for the defendant declaring the note and mortgage null and void, and appeal by the plaintiff.

Action to recover damages for alleged fraud and for breach of warranty in the sale of a mortgage bond, brought to the Superior Court in New Haven County and tried to the jury before Tuttle, Jthe court, upon motion of the defendants, directed a verdict in their favor, from the judgment upon which the plaintiff appealed.

Action to recover damages for negligently causing the death of the plaintiff’s intestate, brought to the Superior Court in New Haven County and tried to the jury before Reed, J.; verdict for the plaintiff for $1,750, which the trial court refused, upon motion of the plaintiff, to set aside as inadequate, and from this refusal the plaintiff appealed, alleging, also, a misdirection in the charge respecting the subject of damages.

<p>Reasons of appeal should assert error directly and not suggest it in the form of a quaere.</p> <p>Strictly speaking there can be no “finding of facts” in a case tried to the jury, for the presiding judge can only state what the respective parties claimed and offered evidence to prove.</p> <p>One who consents to the transfer of his property by a pledgee to a third person cannot recover from the pledgee for a conversion of the property.</p> <p>In the absence of the evidence or an agreed summary of it, this court cannot say that the trial court erred in directing a verdict.</p> <p>The payee of a note, who has taken another note and mortgage as collateral security for the former, does not own the security absolutely, though he may acquire title thereto either by a quitclaim deed from the pledgor or by foreclosure proceedings.</p> <p>The present case was tried and apparently decided upon the theory that the defendants would be accountable to the plaintiff for the value of the mortgage security in excess of the original indebtedness. Held that the plaintiff had obtained, by way of instructions, all he was entitled to upon this branch of the case.</p> <p>A pledgee of collateral security who proceeds with reasonable diligence and prudence in realizing upon it and honestly accounts for the proceeds to the debtor, is not liable for a wrongful conversion of the property.</p> <p>In an action for the alleged conversion of a note and mortgage held as collateral security, the measure of damages is the actual, and not the face, value of the security. In the absence, however, of any evidence of actual value, the face value of the note and mortgage may be taken as their actual value, leaving the burden upon the defendant to show that they were worth less. The instruction of the trial court upon this point in the present case held to be clear and adequate.</p> <p>A party is not entitled to an instruction for which no reasonable basis appears in the pleadings or evidence.</p> <p>A plaintiff whose case for conversion is purely technical and without substantial merit, is not entitled to recover punitive damages.</p>

<p>Upon an appeal from an order of distribution involving the ascertainment of the heirs of an intestate, neither party is entitled to a jury trial in the Superior Court.</p> <p>Controversies arising in the probate court during the settlement of estates are not “civil causes or actions” in the ordinary sense, nor do they become such by an appeal to the Superior Court, in the trial of which that tribunal sits merely as an appellate probate court with restricted powers and not as a constitutional court of general or common-law jurisdiction.</p>

Action to recover damages for causing the death of the plaintiff’s intestate by negligence, brought to the Superior Court in Fairfield County where the plaintiff was nonsuited in a trial to the jury before Williams, J., and from the court’s refusal to set aside such judgment the plaintiff appealed. The plaintiff also brought another action for destroying the automobile of his intestate, which was tried with the present one and was disposed of in like manner.

Prosecution for allowing females to loiter upon premises of the accused where intoxicating liquors were kept for sale, brought to the Criminal Court of Common Pleas in Fairfield County and tried to the jury before Davis, Acting-Judge; verdict and. judgment of guilty, and appeal by the accused.

Suit to secure the termination of a trust, for a construction of the will creating it, for an order that certain persons named in the will state their claims to the fund by interpleading, and for a distribution of the trust fund, brought to the Superior Court in New Haven County where demurrers to the substituted complaint were sustained and judgment rendered for the defendants, Bennett, J., from which the plaintiff appealed.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence in failing to properly light a subway in its station at Bridgeport, brought to the City Court of Waterbury and tried to the jury before McMahon, J.; verdict and judgment for the plaintiff for $150, and appeal by the defendant from the refusal of the trial court to set aside the verdict as against the evidence.

Information for assault with intent to kill, brought to the Superior Court in Middlesex County and tried to the jury before Bennett, J.; verdict and judgment of guilty, and appeal by the accused.

Action to recover damages for alienating the affections of the plaintiff’s wife, brought to the Superior Court in New London County and tried to the jury before Bennett, J.; verdict and judgment for the plaintiff for $1,750, and appeal by the defendant.

<p>Information for writing, printing and publicly exhibiting and distributing in a newspaper in Waterbury, certain offensive, indecent and abusive matter of and concerning a resident of Waterbury, then a State senator representing the fifteenth district, brought to and tried by the District Court of Waterbury, Wolfe, Acting-Judge, upon a demurrer to the information; the court sustained the demurrer and rendered judgment in favor of the accused, from which the State, with permission of the trial court, appealed.</p>

Action against an adjoining landowner to recover damages for his alleged wrongful act in digging a trench along the boundary line and thereby depriving the fence posts, standing upon the plaintiff’s land, of lateral support and causing them, and the earth about them, to fall into such trench, and praying for an injunction to restrain the defendant from maintaining such trench or ditch,—’brought to and tried by the District Court of Waterbury, Beeves, J.; facts found and…

Appeal by the respondent from an award of the Compensation Commissioner of the first district in favor of the claimant, taken to and tried by the Superior Court in Hartford County, Burpee, J., upon the findings of the commissioner; the court found that the commissioner had erred in his construction of the Compensation Act and thereupon set aside his award, from which judgment the claimant appealed.

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

Action to quiet and settle the title to real estate, brought to and tried by the Superior Court in Litchfield County, Reed, J., after the cause had been stricken from the jury docket (Case, J.) upon motion of the plaintiff; facts found and judgment rendered for the plaintiff, and appeal by the defendants.

<p>Action to recover damages for injury to the person and property of the plaintiff, alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Tolland County and tried to the jury before Webb, Jby direction of the court the jury returned a verdict for the defendant, from the judgment on which the plaintiff appealed.</p>

<p>Suit to determine the construction of a clause in the codicil of Robert P. Sherwood, late of Galveston, Texas, deceased, devising real estate situated in Norwich in this State, brought to and reserved by the Superior Court in New London County, Bennett, J., upon the facts alleged in the complaint and admitted by the answers, for the advice of this court.</p> <p>September 17th, 1903, Robert P. Sherwood died domiciled in Galveston, Texas, leaving, as a part of his estate, real estate in Norwich in this State, and a will and codicil thereto duly probated in Texas and, by exemplified copy, in the Norwich probate district. By the codicil he gave the use of his Norwich real estate to his wife and a sister, both now deceased, for and during their natural lives. The remainder over, upon their decease, he gave, to quote the language of the codicil, “to my cousin Mrs. Lizzie McNeil for herself and children.” In 1914 this real estate was sold by order of the Court of Probate, and the proceeds of such sale invested in a note and mortgage. The plaintiff is the trustee of this invested fund, and holds the same as such trustee subject to the terms of the will in lieu of the real estate. The defendant Elizabeth J. MacNeill is the person referred to in said codicil as the testator’s cousin, Mrs. Lizzie McNeil. She has four children, two of whom are of age and two minors. These are her only children, and no child of hers has died leaving children. Questions have arisen as to the true construction and meaning of the gift over contained in the codicil to Mrs. MacNeill for herself and children, and the Superior Court is asked to advise who are entitled to take, and if more than one, in what interests and proportions.</p>

<p>It is within the judicial discretion of the trial court, in furtherance of justice, to reopen a cause, civil or criminal, after the evidence has been closed and the arguments have commenced, and allow the introduction of further testimony, provided the party making the request has been fair and diligent in trying his cause in the regular way, and his opponent is afforded full opportunity to meet the new evidence.</p> <p>In the present case—a prosecution for stealing three heifers in the latter part of August, 1914,—a witness for the State identified the stolen animals as those of the complainant, and on his cross-examination testified that the heifers had calved about April 1st, 1915. In the opening argument the accused insisted that if the heifers calved on or about April 1st they could not have been the complainant’s, since the evidence of the State was such as to have precluded them from calving as late as that. Upon the following day, and before further argument, the State’s Attorney moved to reopen the case and allow the witness, who said he was mistaken, to change his testimony as to the date when the heifers had calved; and this the court permitted, giving the accused full opportunity to introduce testimony in rebuttal. Held that no principle of law was violated in permitting the witness to change his testimony at that late hour, after his attention had been called to the consequences of his former statement, and after he had had an opportunity to confer with other interested parties; though these considerations were proper for the trial court in passing upon the motion to reopen, and for the jury in weighing the credibility of the testimony.</p> <p>This discretionary power ought not to be exercised to the prejudice of the accused; but this means a legal prejudice, not merely disadvantage to the accused arising from the admission of the evidence out of its order, or because, by reason of that fact, the evidence assumes an importance it would not otherwise possess.</p> <p>Evidence may be so clearly immaterial as to render its admission harmless.</p>

Application in the nature of an appeal from the refusal of the board of relief of the town of Putnam to reduce the valuation placed by the assessors upon the plaintiff’s taxable real estate in said town, taken to and tried by the Superior Court in Windham County, Greene, J., upon the defendant’s demurrer to the plaintiff’s reply; the court sustained the demurrer and, upon the plaintiff’s declination to plead further, rendered judgment confirming the action of the board of…

; facts found and judgment rendered in favor of the defendants, confirming the action of the Court of Probate, and appeal by the plaintiffs. Ruth Deborah Richards, a resident of the town of Winchester in this State, died intestate on January 12th, 1914, leaving personal estate and no husband, descendants, brothers, sisters, or parents. Her estate is in process of settlement in the Court of Probate for the district of Winchester and is ready for distribution.

Suit to restrain the defendants from occupying and using their premises adjoining Snipsic Lake in the town of Tolland as a public picnic-ground and pleasure-resort, and thereby subjecting to contamination or pollution the waters of the lake which the plaintiff was authorized to use and was using as a water-supply for the city of Rockville and the town of Vernon, brought to and tried by the Superior Court in Tolland County, Webb, J.; facts found and judgment rendered awarding…

Action to restrain the defendant from using a telephone line in front of the plaintiff’s premises which was alleged to have been constructed without legal authority and without payment to the plaintiff for the taking of his property, and also for a mandatory injunction requiring the defendant to remove such line, and for $100 damages, brought to the Superior Court in Hartford County, where the defendant’s demurrer to the complaint was sustained (Burpee, J.) and, upon refusal…

Action to recover damages for alleged fraudulent representations, brought to and tried by the Superior Court in Hartford County, Burpee, J., upon a demurrer to the complaint; the court sustained the demurrer and, upon the refusal of the plaintiff to amend his complaint, rendered judgment for the defendant, from which the plaintiff appealed.

Action to recover damages for personal injuries sustained in a rear-end collision upon a highway at night, which was alleged to have been caused by the defendant’s negligence in failing to carry a light upon his wagon, brought to and tried by the Superior Court in Hartford County, Burpee, J.; facts found and judgment rendered for the plaintiff for $2,250, and appeal by the defendant.

Action to recover the price of a quantity of coal tar furnished by the plaintiff to the defendants for use in road building, brought to the Superior Court in Hartford County and tried to the jury before Tuttle, J.; verdict and judgment for the plaintiff for $1,705, and appeal by the defendants.

Action to recover commissions for negotiating notes and for selling the defendant’s stock, brought to and tried by the Superior. Court in Hartford County, Burpee, J.; facts found and judgment rendered for the plaintiff for $1,142, and appeal by the defendant.

Action upon a policy of insurance against loss and expense incurred by the plaintiff by reason of his ownership and operation of an automobile, brought to and tried by the Superior Court in Hartford County, Bur-pee, J., upon a demurrer to the reply; the court sustained the demurrer and, upon the refusal of the plaintiff to plead over, rendered judgment for the defendant, from which the plaintiff appealed.

<p>A finding that the alleged widow of a Connecticut decedent, who claimed a statutory share of his estate, had abandoned him without sufficient cause and had continued such abandonment to the date of his death, thereby forfeiting her right to a share of his property (§ 391), necessarily assumes the validity of their marriage, although the trial court did not undertake to determine that question.</p> <p>Abandonment of one spouse by the other is a question of fact whose determination by the trial court is conclusive.</p> <p>A wife who voluntarily leaves her husband with an intent not to return to him and not to resume her marital duties or claim her marital rights, thereby “abandons” him within the meaning of that word in § 391 of the General Statutes. This intent need not be formed before or at the moment of separation; if it is formed afterward and is then acted on, the abandonment is then complete.</p> <p>While a separation of husband and wife pursuant to agreement does not amount to an “abandonment,” the mere existence of such an agreement does not, under § 391, constitute a “sufficient cause” for an actual, total renunciation of marital rights and duties, continued for years and until the death of one spouse, accompanied with adulterous conduct meanwhile upon the part of the surviving claimant. Under such circumstances—which was practically the present case—the survivor can have no claim to a statutory share of the decedent’s estate.</p> <p>The obvious purpose of the last clause of § 391 was the protection of intestate estates from the technical but unjust claims of surviving husbands and wives who, without sufficient cause, had in fact permanently abandoned their marital rights and duties; and to effectuate this purpose the word “abandonment” should be construed accordingly, and not as equivalent to “desertion” in our divorce statute, § 4551.</p> <p>In the present case the decedent, the alleged husband, had also remarried and was equally guilty of adultery. Held that such wrongful conduct upon his part was of no avail to establish the plaintiff’s claim to a part of his estate.</p>

Appeal by the claimant from the refusal of the Compensation Commissioner of the first district to award him compensation for injuries to him arising out of and in the course of his employment by the respondent, taken to and tried by the Superior Court in Hartford County (Tuttle,«/.), which found that the commissioner had committed no error in the application of the legal principles pertinent to the cause, and dismissed the appeal, from which the claimant appealed.

<p>A surety bond for the faithful performance by the principal of his duties as town treasurer, an annually elected officer, provided that it might be continued from year to year in case of the principal's re-election, but that liability of the surety “under such renewal shall cease one year from the expiration of the term of office covered by said re-election.” Held that the words quoted were not to be construed as an extension of the period of basic liability for a further space of one year after the expiration of the term of office, as the plaintiff town contended, but merely as a limitation upon the time within which proceedings must be brought against the surety company in order to enable the plaintiff to recover upon the obligation.</p> <p>The law cannot contemplate a remedy when there is no existing liar bility.</p> <p>It is competent for parties to fix by express stipulation the time when liability upon their agreement shall expire; and this period may, if they see fit, be shorter than that prescribed by the statute of limitations.</p> <p>Obligors in an official bond are presumed by law to bind themselves only for the term for which the principal obligor was elected or appointed, if there are no words in the instrument extending the time.</p> <p>A contract, susceptible of two constructions, should be so interpreted as to render it a fair and reasonable undertaking, rather than one of an unusual and irrational character.</p>

<p>Action to recover damages for the refusal of the defendant either to deliver property in its hands which was alleged to be owned by the plaintiff, or to pay to the plaintiff the value of such property, brought to and tried by the Superior Court in Hartford County, Burpee, J.; facts found and judgment rendered for the plaintiff for $30,000, and appeal by the defendant.</p>

Action in the nature of an appeal from an assessment of benefits and damages resulting from the layout of a new highway by the defendant city, brought to and tried by the Superior Court in Fairfield County, Case, J.; facts found and judgment rendered confirming the action of the board of appraisal, and appeal by the plaintiff.

Action to recover damages for, and for an injunction to restrain the commission of, continuing trespasses by the defendant upon land of the plaintiff, through the claimed use of a right of way, brought to and tried by the Court of Common Pleas in New Haven County, Simpson, Jfacts found and judgment rendered in favor of the defendant, and appeal by the plaintiff.

Action to recover of one of the alleged makers of a certain promissory note the unpaid balance due thereon, with interest, brought to the City Court of Waterbury and thence, by the defendant’s appeal, to the District Court of Waterbury and tried to the jury before Beeves, J.; verdict and judgment for the plaintiff for $458, and appeal by the defendant.

Appeal by the respondent from the finding and award of the Compensation Commissioner for the third district, taken to and heard by the Superior Court in New Haven County, Curtis, J., who found the issues for the claimant and rendered judgment dismissing the appeal, from which the respondent appealed.

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 Burpee, J.; verdict and judgment for the defendant, and appeal by the plaintiff.

Action for the specific performance of an agreement to sell and convey certain real estate, and for damages, brought to and tried by the District Court of Waterbury, Reeves, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff. This action, claiming the specific performance of an agreement, and damages, was before this court at the June term, 1914. 88 Conn. 547, 92 Atl. 113.

Action to recover damages for an alleged breach of contract, brought to the Superior Court in New Haven County and tried to the jury before Gager, J.; the jury returned a verdict for the plaintiff for $1,500 damages, which the trial judge ordered set aside unless he would file a remittitur of $650, which he did, and judgment was thereupon rendered for him for $850 damages, from which the defendant appealed.

Suit to secure the application of the income accruing on a testamentary trust fund to the payment of debts due the plaintiff from the defendant Plume, the beneficiary of the income, and for other relief incidental thereto, brought to and tried by the Superior Court in New Haven County, Greene, J.; facts found and judgment rendered for the plaintiff for $3,149, to be paid from the income of said fund, and appeal by the defendants Plume and Willard.

; the court sustained the findings and award of the commissioner and dismissed the appeal, and from this judgment the defendants appealed. The commissioner found the following facts: The claimant was living with Henry J. Larke prior to his decease as his wife, and was entirely dependent upon him for support.

Suit to secure the cancellation and discharge of a certificate of tax-lien, as an alleged cloud upon the plaintiff’s title to its real estate, brought to and tried by the Court of Common Pleas in Hartford County, Smith, J., upon a demurrer to the answer; the court overruled the demurrer arid, upon the refusal of the plaintiff to plead further, rendered judgment for the defendant, from which the plaintiff appealed.

Action to recover an alleged balance due under an advertising contract, brought to and tried by the Court of Common Pleas in Hartford County, Smith, J.; facts found and judgment rendered for the plaintiff for $366, and appeal by the defendant.

Suit to set aside an attachment of real estate and of personal property upon the alleged ground that such attachment was originally void, and, if not, that it had been dissolved by proceedings in insolvency commenced within sixty days from the date of the attachment, brought to and reserved by the Superior Court in Litchfield County, Gager, J., upon a demurrer to the complaint and the stipulation of the parties, for the advice of this court.

Action to recover the purchase price of certain shares of stock, and for money loaned and rent due, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; facts found and judgment rendered in favor of the plaintiff for $580, from which the defendants appealed. The court disallowed the claim for rent, and made no finding as to the claim for moneys loaned.

Appeal by the respondent from an award of the Compensation Commissioner for the third district, taken to the Superior Court in New Haven County, Webb, J., where the award of the commissioner was confirmed proforma and judgment entered accordingly, from which the respondent appealed.

Information for assault with intent to murder, brought to the Superior Court in New Haven County and tried to the jury before Curtis, Jverdict and judgment of guilty of assault with intent to kill, and appeal by the accused.

<p>Action to recover damages for wrongfully depriving the plaintiff of the use of the water of a certain pond or reservoir, brought to the Superior Court in Windham County and tried to the jury before Greene, J.; verdict and judgment for the defendant, and appeal by the plaintiffs for alleged errors in the charge of the court to the jury.</p>

Action for a divorce, for an annulment of the marriage because of alleged fraud of the defendant, and for a decree relieving the plaintiff from any legal obligation to support children of whom he was not the father, born to the defendant about four months after the marriage, brought to and tried by the Superior Court in Windham County, Webb, Jfacts found and judgment rendered for the defendant, and appeal by the plaintiff.

Action to recover damages for injury to the plaintiff’s automobile by a collision on the highway which was alleged to have been caused by the negligence of a servant of the defendant in driving its motor-truck, brought to the Superior Court in Middlesex County where the plaintiff was nonsuited in a trial to the jury before Burpee, J., and from the refusal of the trial court to set aside such judgment he appealed.

Appeal by the receiver of the Aetna Indemnity Company from an order and decree of the Superior Court in Hartford County, Gager, J., in receivership proceedings, allowing a claim of the Bank of Buffalo in the sum of $9,455. On January 5th, 1906, one Rodebaugh was engaged in the grain business in Buffalo, New York, and later on a corporation, the Niagara Company, succeeded to the business of Rodebaugh, and he became its president and a Mr. Chase its secretary and treasurer.

Action to recover the amount of a funeral benefit, brought to and tried by the City Court of Hartford, Bullard, J.; facts found and judgment rendered for the plaintiffs for $100, and appeal by the defendant. The United Brotherhood of Carpenters and Joiners of America is a national organization whose membership consists of the members of a large number of local unions scattered throughout the country.

Action to recover for services as brokers in effecting a sale of the defendant’s real estate, brought to and tried by the Court of Common Pleas in Hartford County, Smith, Jfacts found and judgment rendered for the plaintiffs for $535, and appeal by the defendant. The following facts were found: In March, 1913, the defendant was the owner of a farm of about one hundred acres, upon which he lived and conducted a general farming business.

Application by a suspended member of the bar for reinstatement, brought to and heard by the Superior Court in Hartford County, Burpee, J.; facts found and judgment rendered denying and dismissing the application, and appeal by the applicant..

Appeal by the respondents from a decision and award of the Compensation Commissioner of the third district in favor of the claimant, taken to and heard by the Superior Court in New Haven County, Webb, J.; upon the facts as found by the commissioner, which the court adopted as its finding, judgment was rendered dismissing the appeal and confirming the award, from which the respondents appealed.

Applications to determine the amount of the tax due from the respective defendants under the provisions of chapter 292 of the Public Acts of 1915, and for an order for its payment, brought to and reserved by the Superior Court in Hartford County, Tuttle, J., upon demurrer to the answer in each case, for the advice of this court. The taxes in question were laid pursuant to Part II of chapter 292 of the Public Acts of 1915, p. 2132.

<p>Testamentary powers whose execution depends upon the mere discretion and will of the donee of the power, terminate at his death and cannot be exercised by his official successor appointed by court; but if the power is one which the original trustee would be required to execute, were he acting as such, it may and should be executed by his successor appointed pursuant to § 249 of the General Statutes. In the former case the court cannot control the discretion of the trustee nor substitute its own: while in the latter case the power is coupled with a trust, which a court of equity will enforce either through the original trustee or an appointed successor.</p> <p>In the present case a testator gave one half of the residue of his property to a trustee, who was to pay over the net income thereof to the testator’s son, and at stated times was directed to make careful inquiry into the social and business character and relations of the . son and if then of opinion that he would prudently and economically manage the property, to transfer and deliver to him a one-third portion thereof; otherwise to withhold it until the time arrived for another inquiry and decision by the trustee. The original trustee died after having transferred two thirds of the property to the son. Held that his official successor, appointed by the Court of Probate under General Statutes, § 249, was entitled to make the careful inquiry with respect to a transfer of the balance of the trust estate to the son, and to act in accord with his opinion formed upon such investigation.</p>

Action by a trustee in bankruptcy to recover money paid by the bankrupt to the defendant as an alleged illegal preference, brought to and tried by the Superior Court in New Haven County, Reed, J.; facts found and judgment rendered for the plaintiff for $1,052, and appeal by the defendant.

Action to recover the price of merchandise sold, brought to and tried by the Court of Common Pleas in New Haven County, Booth, Acting-Judge; facts found and judgment rendered for the plaintiff for $260, and appeal by the defendant Weil. Error and new trial ordered. The plaintiff is a corporation located in New York City, and is engaged in the manufacture, importation, and sale of fancy goods, novelties, notions and the like.

<p>The parties’ own written agreement must prevail in this court over an apparently inconsistent or contradictory statement in the finding.</p> <p>The law does not require the idle ceremony of an actual physical tender to a vendee who has definitely notified the vendor that he will not accept the article if tendered. Under these circumstances it is sufficient if the vendor, having the article or the means of securing it, is ready and willing to deliver it to the vendee at the time and place agreed upon.</p> <p>Ordinarily the damages recoverable by a vendor for the vendee’s wrongful refusal to take goods contracted for, is the difference, at the time and place of delivery, between the contract price and the market price; and this rule is affirmed by § 64 of our Sales Act “in the absence of special circumstances showing proximate damage of a greater amount.”</p> <p>An automobile sales agent who loses his commission through the refusal of a buyer to take the car he had ordered, is entitled to recover the amount of such commission less any expenses incurred by him in making the car ready for delivery pursuant to the contract.</p> <p>In the present case the defendants, who were agents for the sale of a certain kind of automobile, agreed in writing with the plaintiff to sell and deliver to him a car of that kind for $3,250, and to accept at $700 in part payment therefor a used car which the plaintiff turned over to them. The defendants also agreed to, and did, give their demand note for $700 to the plaintiff upon his promise not to call for its payment unless the defendants should fail to deliver the new car at the time agreed upon. About two months thereafter, and from thence until the time of delivery, the plaintiff repeatedly expressed his unwillingness to take the car he had ordered, and solely because of his refusal the defendants did not make a formal tender of the car, though ready, able and willing to deliver the car if the plaintiff would accept it. The plaintiff in this action sought to recover, first, for an alleged breach by the defendants of their promise to deliver to him the new car, and second, upon the $700 note. Held:—</p> <p>1, That the plaintiff could not recover upon the first count, because there had been no failure upon the part of the defendants in the delivery of the car, the law not requiring them to make a useless tender; and for the same reason no recovery could be had on the note, the parties having expressly agreed that it should not become payable until there had been a default in the delivery of the car.</p> <p>2. That the defendants upon their counterclaim were entitled to recover a sum equal to the net profit they would have realized had the plaintiff taken and paid for the car as he agreed, or, in other words, the net amount of their commission, but were bound to credit upon that sum the $700 which they had received of the plaintiff by way of his used car.</p>

Action to recover damages for the alleged conversion of an article of jewelry, brought to and tried by the District Court of Waterbury, Meigs, Deputy-Judge; facts found and judgment rendered for the defendant, and appeal by the plaintiffs.

<p>Writ of error to reverse a judgment rendered for the defendant by the City Court of Waterbury, Larkin, J., in an action of summary process.</p>

Action to recover damages for negligently causing the death of the plaintiff’s intestate, brought to the Superior Court in Fairfield County and tried to the jury before Williams, J.; verdict and judgment for the defendant Timothy O’Neil, after the plaintiff had been nonsuited with respect to the two other defendants, and appeal by the plaintiff.

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 Webb, J:; the jury returned a verdict for the plaintiff for $500 which the trial court set aside as against the evidence, and from this action the plaintiff appealed.

Action to foreclose a tax lien, brought to and reserved by the Court of Common Pleas in Fairfield County, Scott, J., upon an agreed statement of facts, for the advice of this court.

<p>Action against the surety upon a penal bond to recover the amount of an unsatisfied judgment obtained by the plaintiff against the principal of the bond, brought to and tried by the Court of Common Pleas in Fairfield County, Scoff, J., upon demurrer to the answer; the court sustained the demurrer and rendered judgment for the plaintiff for $312, and the defendant appealed.</p> <p>The plaintiff seeks recovery against the surety for a breach of the condition of a common bond given October 27th, 1914. The condition is as follows: “The condition of this obligation is such that whereas the said Van Zandt Jacobs & Company has brought an action against the said Rosa Reich, said action being returnable to the City Court of Bridgeport to be holden in and for the City of Bridgeport on the second Monday of November, 1914, demanding three hundred and fifty dollars damages, the writ being dated at Bridgeport on the 27th day of October, 1914, and signed by Charles H. Shapiro as Commissioner of the Superior Court for Fairfield County and directing an attachment against the goods or estate of said Rosa Reich the defendant in said action. Now, therefore, if the said Rosa Reich shall pay any judgment that may be recovered against her in such action not exceeding the amount of three hundred and fifty dollars (the amount of damages demanded by said writ) then this bond shall be void, but otherwise in full force and effect.”</p> <p>From the complaint and answer demurred to it appears that the admitted facts, in addition to the execution and delivery to the plaintiff of the bond, are that judgment was on March 18th, 1915, rendered in said action in favor of the plaintiff and against the defendant therein for $272.43 damages and $24.81 costs of suit; that execution thereupon issued therefor; that on August 26th, 1915, demand upon said execution was made upon the judgment debtor, llosa Reich, for the sum named therein, which demand was refused and said execution returned wholly unsatisfied; that on the same day demand was made on the defendant for said sum and that demand refused; that the bond was given to release property of Rosa Reich from an attachment made in the suit against her; and that on December 7th, 1914, she was adjudged a bankrupt.</p>

Action of interpleader to determine the rights of the respective defendants in and to a death-benefit of $500 due from the plaintiff Order, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, Jfacts found and judgment rendered in favor of Reich, administrator, from which the defendant Anna Campbell, individually and as administratrix, appealed.

Suit to determine the construction of the will of Thomas L. Bartholomew of Bridgeport, deceased, brought to and reserved by the Superior Court in Fair-field County, Gager, J., upon an agreed statement of facts, for the advice of this court. Thoma’s L. Bartholomew, late of Bridgeport, died April 6th, 1912, possessed of both real and personal estate and leaving a will duly probated. A son, Francis A. Bartholomew, survived him, but died April 24th, 1915.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Fairfield County where the plaintiff was nonsuited in a trial to the jury before Gager, J., and from the refusal of the trial court to set aside this judgment he appealed. From the evidence the following facts might reasonably have been found:— The plaintiff was injured while working in the defendant’s shop.

Action to recover damages for negligently causing the death of the plaintiff’s intestate, brought to and tried by the Superior Court in Fairfield County, Gager, J., upon a demurrer to the complaint raising the question of the statute of limitations; the court sustained the demurrer and rendered judgment for the defendant, ■from which the plaintiff appealed.

Appeal by the plaintiff from the denial, by the Court of Probate for the district of Stamford, of her application to set aside an order of said court committing her to a sanitarium in Stamford, and also a decree of said court appointing a conservator over her and her estate, taken to and tried by the Superior Court in Fairfield County, Shumway, J.; facts found and judgment rendered confirming the action of the Court of Probate, from which the plaintiff appealed.

<p>Appeal by the claimant from a judgment of the Superior Court in Hartford County, Tuttle, J., which set aside the finding and award of the Compensation Commissioner for the first district in favor of the claimant.</p>

Action to recover treble damages for a vexatious suit, brotight to the Superior Court in Fairfield County and tried to the jury before Williams, J.; verdict and judgment for the plaintiff, and appeal by the defendant.

<p>Upon an application to this court for an order requiring the trial judge to make a finding of facts in the case, the date given in the judgment-file will be treated as the date upon which the judgment was in fact rendered; for that statement, like other averments of the record, is conclusive in this court, until it has been altered or amended in the regular and proper way.</p> <p>A trial judge is not bound to make a finding of facts if the request therefor is not seasonably filed.</p>

Action to foreclose an alleged judgment-lien upon real estate, brought to and tried by the City Court of Meriden, Fay, J.; facts found and judgment rendered for the defendants Fitzgerald and Budd, and appeal by the plaintiff.

<p>A daughter who applies for letters of administration upon her father’s intestate estate cannot be said to be guilty of fraud as matter of law merely because she made no effort to locate a half-brother who had been absent and unheard of for almost forty years and whom she believed to be dead, as she informed the Court of Probate upon presenting her application.</p> <p>The Court of Probate has exclusive jurisdiction to determine who are entitled to take intestate estate as distributees, and its determination is not re-examinable in the Superior Court except on appeal.</p> <p>The legal title to personal property, upon the death of its owner, passes to his executor or administrator, and after the payment of debts the property is distributable to the heirs or legatees.</p> <p>In the present case the trial court concluded that the defendant, who had completed the settlement of her father’s estate under and in compliance with the orders of the Court of Probate, had not been guilty of any fraud or concealment whatever with intent to deprive her half-brother of his share of the property. Held that upon the facts found it could not be said that this inference or conclusion was unreasonable or in violation of any principle of law.</p> <p>While the statute of limitations does not run in favor of an administrator during the settlement of the estate, it does begin to run after distribution of the property has been completed pursuant to the order of court.</p> <p>A distributee who receives more than his share of the property because a living heir, unheard of for nearly forty years and therefore presumed to be dead, was not named with the other heirs in the order of distribution, may avail himself of the statute of limitations when sued by the omitted heir for conversion.</p>

Action of replevin for the possession of an automobile truck, brought to and tried by the Court of Common Pleas in Fairfield County, Scott, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendant. The defendant, Ladrigan, is a deputy sheriff who had attached the truck in question as the property of one Millspaugh, at the suit of one Lawton, on January 30th, 1914.

Action, under § 1097 of the General Statutes, to recover damages for unlawfully cutting trees, timber and poles upon land alleged to belong to the plaintiff, brought to the Superior Court in New London County •and tried to the jury before Bennett, J.; verdict and judgment for the defendants, and appeal by the plaintiff.

<p>The State has the right, in the exercise of its police power, to seize implements used in catching fish in violation of law, and to condemn them to sale or destruction by judicial process.</p> <p>If the statute authorizing such seizure fixes no limit of time after the seizure for the institution of condemnation proceedings, they must be instituted within a reasonable time.</p> <p>A delay of fourteen days is not so unreasonable as to make the officer who made the seizure a trespasser ah initio as matter of law; especially where the owner of the property had in the meantime been arrested and convicted of the unlawful fishing for which the property was seized, and had taken an appeal which was still pending, so that the institution of a separate condemnation proceeding within the fourteen days would probably have involved two trials and two appeals on practically the same issue. Under such circumstances it was not necessarily unreasonable for the officer to await the result of the criminal prosecution before instituting condemnation proceedings also.</p> <p>A court will not impute to the General Assembly an unexpressed intention to confer an unconstitutional power.</p> <p>Where a statute authorizes the seizure of property used in violation of law, with a view to its condemnation, the fact that the statute does not. expressly require a warrant to be procured before the seizure, nor confine the right of seizure to the very time when the property was being unlawfully used, does not render the statute invalid; since the implied authority to seize without warrant is necessarily limited to such seizures as are permissible under the constitutional guarantees.</p> <p>A statute may empower an officer to seize property without a warrant at the very time when it is being used in violation of law, or on the speedy information of others.</p> <p>A seizure of property without a warrant on the day after its illegal use, in connection with the arrest of the owner for so using it, is not necessarily unreasonable or unlawful.</p> <p>The lawful seizure of property as the first step in condemnation proceedings by a court of competent jurisdiction is of itself sufficient legal notice to require the owner to appear and defend in such proceedings.</p> <p>Inasmuch as § 3110 of the General Statutes requires the order of condemnation to be made “in open court” upon a complaint against the owner, or against the person using or in charge of the property if the owner is not known, and authorizes an appeal by any party aggrieved by the judgment, it plainly contemplates the giving of such notice and opportunity to be heard as due process of law requires, and is therefore constitutional and valid.</p>

, and reserved by it, upon an agreed statement of facts, for the advice of this court. John Eccles, late of Norwich, died testate, leaving a considerable estate.

<p>Appeal from an order and decree of the Court of Probate for the district of Lebanon adjudging the defendant tq be an insolvent debtor and appointing a trustee to administer his property, taken by him to and reserved by the Superior Court in New London County, Shumway, J., upon the plaintiff’s demurrer to the reasons of appeal, for the advice of this court.</p>

<p>Action to recover damages for an alleged breach of contract and for the reasonable worth or value of services rendered by the plaintiff’s testatrix, brought to the Superior Court in Hartford County where the plaintiff was nonsuited in a trial to the jury before Tuttle, J., and from the refusal to set aside such judgment she appealed.</p>

Suit to foreclose a mortgage of real estate, to secure possession, and to obtain a judgment for damages, brought to and tried by the Superior Court in Hartford County, Tuttle, J., upon the plaintiff’s motion for a deficiency-judgment after a strict foreclosure and an appraisal of the premises; the court denied the motion, and the plaintiff appealed.

Action for damages for fraudulent representations' in effecting a sale of a restaurant together with its good-will, brought to the Superior Court in Fairfield County and tried to the jury before Webb, J.; verdict and judgment for the plaintiff for $2,700, and appeal by the defendant.

<p>Application for a writ of mandamus requiring the respondent, a Maine corporation and its secretary, to allow the relators (a New York copartnership) to inspect the records and stock-books of the respondent at its office in this State, brought to the Superior Court in Fairfield County where the alternative writ was quashed (Case, J.) upon the respondent’s motion, from which judgment the relators appealed.</p>

Action to recover money alleged to have been received by the defendant to and for the use of the plaintiff, brought originally before a justice of the peace and thence by the defendant’s appeal to the Court of Common Pleas in Hartford County and tried to the court, Smith, J.; facts found and judgment rendered for the plaintiff for $3.38, and appeal by the defendant.

<p>Action to foreclose a mechanic's lien on real estate, brought to and tried by the Court of Common Pleas in Fairfield County, Wilder, Acting-Judge; facts found and judgment rendered for the plaintiffs, and appeal by the defendant Chester H. Brush.</p>

<p>Action for a divorce for alleged desertion, brought to and tried by the Superior Court in Fairfield County, Case, J.; facts found and judgment rendered for the defendant, and appeal by the plaintiff.</p>

Information for displaying upon real estate an advertisement containing more than four square feet of surface without first having secured a license therefor, in alleged violation of chapter 314 of the Public Acts of 1915, brought to the City Court of Bridgeport and thence, by the defendant’s appeal, to the Criminal Court of Common Pleas in Fairfield County, where the court, Walsh, sustained a demurrer to the information and rendered judgment for the defendant, from which…

Action to recover instalments of the purchase price of a certain patented invention, and for an accounting of royalties claimed to be due under the contract of sale, brought to and tried by the Superior Court in Fairfield County, Case, J.; facts found and judgment rendered for the defendants, and appeal by the plaintiff.

Action to recover a sum of money owned by the plaintiffs intestate which was alleged to have been received from her by the defendant’s testator, her husband, and to have been converted by him to his own use, brought to the Superior Court in New London County and tried to the jury before Bennett, J.; verdict and judgment for the plaintiff for $1,822, and appeal by the defendant.

<p>Action by the payee against one of two joint and several indorsers of a promissory note for five hundred dollars, to recover the amount thereof, brought to the Court of Common Pleas in Hartford County and tried to the jury before Smith, J.; verdict and judgment for the plaintiff for $557, and appeal by the defendant.</p>

Appeal by the plaintiffs from an order and decree of the Court of Probate for the district of Fairfield aseertaining and determining the devisees and legatees under the will of Eliza H. Meeker of Fairfield, deceased, taken to and tried by the Superior Court in Fairfield County, Webb, Jfacts found and judgment rendered in favor of the defendants, sustaining the action of the Court of Probate, from which the plaintiffs appealed.

Action to recover the reasonable worth of groceries and provisions alleged to have been sold and delivered to the defendant, a wife, and to have been used by her for her own support and that of her husband and their children, brought to and tried by the District Court of Watérbury, Meigs, Deputy-Judge; facts found and judgment rendered for the defendant, and appeal by the plaintiffs. ■ The plaintiffs, merchants doing business in Brooklyn, New York, bring this action to…

Action to recover salary or wages claimed to be due under a written agreement of employment, brought to the Court of Common Pleas in Fairfield County where a demurrer to the second defense of the answer was sustained (Scott, J.) and the cause was afterward tried to the court, Booth, Acting-Judge; facts found a,nd judgment rendered for the defendant, and appeal by the plaintiff.

Action to recover damages for negligently causing the death of the plaintiff’s intestate, brought to the Superior Court in New Haven County and tried to the jury before Reed, J.; verdict and judgment for the defendant, and appeal by the plaintiff. North Main Street is one of the principal streets in the borough of Naugatuck, and runs in a general northerly and southerly direction. It is forty feet in width, with a seven foot sidewalk on its westerly side.

Action to récover 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 Gager, J.; the court, upon motion of the defendant, directed a verdict in its favor, from the judgment upon which the plaintiff appealed.

Plea in Abatement by the defendant (appellee) to an appeal by the plaintiff (appellant) from a decision of the Court of Common Pleas in New Haven County, Simpson, J., upon the alleged ground that said appeal was not taken within ten days after the rendition of such decision; to the plaintiff’s answer to this plea the defendant demurred.

Action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence, brought to the Superior Court in Fairfield County where the plaintiff was nonsuited in a trial to the jury before Gager, J., and from the refusal of the court to set aside this judgment the plaintiff appealed.