a court must in no case present evidence to a jury in such a way as by any possibility to indicate its own impression as to its significance, as tending to establish any point in the case, is to lay down a seemingly impossible rule for judicial conduct; a rule a rule which, if possible to observe, could have no other reason for existence than such a distrust of the intelligence and independence of juries as is inconsistent with any respect for such a form of trial; which leaves a judge useful, perhaps, as a presiding officer, but powerless as a minister of justice,-shorn of his attributes, without function, colorless, useless. If it be true, and we hold it is, as stated by this court in State v. Watkins, 9 Conn. 54, that "confidence must be put in the jury," and "that they exercised their jurisdiction soundly is a presumption of law," then there can be no sense in preventing a court from rendering assistance to them, on the ground stated in the brief in behalf of the appellant, in which it is said that such expressions as those used by the trial court affect the verdict, because "the average juror" is "ever too eager to throw the burden of responsibility of convicting the accused upon the court, and ever too alert to catch any indication of opinion in regard to these facts on the part of the trial judge that will enable him to bring his verdict in conformity therewith." Doubtless, the law, as quoted by the appellant from Thompson on Trials, is correct: "The jurors are the sole judges of the credibility of the witnesses, the weight of evidence, and the facts that it establishes; and any form of charge, the effect whereof is to take these from them, or to obstruct the free exercise of their judgment in passing upon these, is erroneous." The trial court, however, took nothing from the jury, but instead, by its charge, presented to them the true questions for their consideration, thus assisting but not obstructing them in the free exercise of their judgment. That the conduct of the trial court in this respect was entirely proper is abundantly shown by previous decisions of this court. In State v. Duffy, 57 Conn. 529, 18 Atl. 791, it was said: "The defendant further complains of the charge of the court, but a careful examination of it shows clearly that no just exception can be taken to it. Comments of the court in its charge upon the evidence in the case are within the proper province of the court, so long as they do not amount to a direction or advice as to how the jury shall decide the matter to which the evidence relates." In Setchel v. Keigwin, 57 Conn. 478, 18 Atl. 594, the language of Storrs, J., in First Baptist Church v. Rouse, 21 Conn. 167, is repeated and approved: "It is competent in all cases, and in some highly expedient, for the court not only to discuss, but to express its opinion upon the weight of, the evidence, without, however, directing the jury how to find the facts, and this is a right necessarily limited only by its own discretion." This last

was a civil case, but the statute (Gen. St. § 1101) applicable to such cases is identical with Gen. St. § 1630, in its language prohibiting the court from instructing the jury how to find upon questions of fact. See, also, Morehouse v. Remson, 59 Conn. 392, 22 Atl. 427. If a court had no such power as is above indicated, it would be absurd and a contradiction to say that it was the duty of a court to do things which involve its exercise; as in State v. Williamson, 42 Conn. 261, to caution the jury as to the weight to be given to the evidence of an accomplice, and advise them, as a general rule, that it is safer to acquit where there is no corroboration of such evidence. It may be said that this is in favor of the accused. But the statutory prohibition would be violated by a court that should direct a jury to return a verdict of not guilty as truly as by one that directed a verdict of guilty. This, too, must be held to be the intent of the statute, as long as it is considered that the public have rights, as well as those accused of violation of the laws enacted for its protection and welfare. We need only add, generally,-for examples are infinite, that in every instance in which a court states to a jury a so-called presumption, whether it be styled one of fact or one of law; whether it be of "aquatic habits in an animal found with webbed feet," or "of a malicious intent to kill, from the deliberate use of a deadly weapon,"-though doing what a consensus of judicial opinion everywhere holds to be a duty, it is also doing that which is contrary to our statute, if it is capable of the construction for which the appellant contends.

Concerning the remaining ground of alleged error, which relates to the charge as a whole, it is impossible, without reciting substantially the entire charge, to say more (nor is it necessary) than that we fully agree with the appellant in the rule which he states, quoting from Thomp. Trials, § 2330, that: "Instructions should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side which deserve equal attention. If the jury are misled thereby, judgment will be reversed." But we are unable, from a careful examination of the record, to see that the court below violated such rule. There is no error. The other judges concurred.

RATHBUN et ux. v. GEER. (Supreme Court of Errors of Connecticut. June 29, 1894.)

BOUNDARIES-MONUMENTS-AGREEMENT.

1. Where a tract is described in partition by course and distance, "and to include the whole pond, with the dam," and the effect of including these would be to carry part of the southern boundary a few rods south of the line con

necting two monuments, and the rest of the boundary could be maintained, not in the exact course described, but in a straight line with the monuments, and the northern boundary of the tract to the south is inconsistent with said southern boundary, as described, in both course and distance, the pond and dam are the controlling monuments, and the dividing line must be south thereof.

2. It is a question of law whether clauses in a description of land are repugnant.

3. There is no rule that, if clauses in a description of land are repugnant, the first necessarily prevails over the last.

4. A dividing line, asserted as having been agreed on and recognized by the adjoining owners, must have been acquiesced in by them with knowledge of the facts of its situation and marking; but it need not appear that they knew of the terms, or even existence, of the distribution which first divided their land.

Appeal from court of common pleas, New London county; Crump, Judge.

Trespass q. c. by Charles I. Rathbun and wife against Nathan A. Geer. Judgment for defendant. Plaintiffs appeal. Reversed. The following charges were asked by plaintiffs and refused, viz.: That if the jury should find that "there are two clauses in the distribution of a certain property to Zebadiah Comstock, Jr., which are so repugnant as not to stand together, the first prevails over the last;" and "that if they should find that the parcels of land in the distribution of Zebadiah Comstock's estate are described by both general or collective and special descriptions, and nothing exists which satisfies all the descriptions, but something exists which satisfies some one of them, and is described with sufficient certainty, the others may be disregarded." The court did not give either instruction, but, after charging the jury that, in case of irreconcilable conflicts, monuments controlled courses and distances, proceeded as follows: "About some of the other bounds the surveyors and witnesses have expressed doubt and uncertainty, but there is no doubt or uncertainty about the location of the dam, nor about that clause of the description which purports to set it off to Zebadiah, Jr., so that if you should find that at the time of the distribution the pond and the dam existed as they are at present located, then it seems to me that you must find the dividing line between them, as described in the distribution, south of the dam." The jury were further told that if they found that the original distributees, a few years after the distribution, agreed to, and ran, a division line, as claimed by the plaintiffs, south of the locus in quo, and that they and their grantees had ever afterwards, down to 1891, occupied and held undisputed possession accordingly, "the line so recognized must be taken as the true line, provided, of course, that the original parties establishing or acquiescing in it had knowledge of the facts in relation to the description in the distribution, when they established or agreed to it."

Charles F. Thayer and Charles W. Comstock, for appellants. Frank T. Brown and Amos A. Browning, for appellee.

BALDWIN, J. The return of distribution, under which both parties claim title, must be so construed, if possible, as to give effect to every part, and make them all consistent with each other. The southerly boundary of the tract set to Zebadiah Comstock was described as a straight line running from west to east, S. 86 deg. E., for 150 rods, from one fixed monument to another; and the northerly boundary of the adjoining tract set to Bethiah Baker's heirs was described as a straight line running westerly from the latter of these monuments to the former, S. 86 deg. W., 150 rods. The words, however, added to the description of the Comstock tract, "and to include the whole pond, with the dam," if given their natural effect, would carry its southerly boundary, for the space of a number of rods, a few rods south of the line connecting the two monuments. The rest of the boundary, as described, on each side of the pond, could be maintained; not, indeed, in the exact course designated, but in a straight line between the monuments at either end. The course designated for the northerly boundary of the Baker tract was plainly inconsistent with that previously designated for the southerly boundary of the Comstock tract, since it was a straight line running between the same monuments in a reversed direction, and, if the course of that was correctly described as S. 86 deg. E., the course of this must have been N. 86 deg. W., instead of S. 86 deg. W. The length of this line was also incorrectly given. Upon this state of facts, the court properly instructed the jury that the pond and dam were controlling monuments, and that the dividing line between the parties was south of such dam.

The court was also right in refusing to charge as requested by the plaintiffs. It was a question of law, upon the facts presented, whether there were clauses in the distributors' description of the Comstock tract so repugnant that they could not stand together; and there is no rule that, in case of such repugnancy, the first clause necessarily prevails over the last. In respect to the second request, so much of it as was law was substantially given, and in a manner much more direct and intelligible to the jury, when they were instructed that the pond and dam were controlling monuments. The plaintiffs, however, claimed and offered evidence to prove that the predecessors in title of both parties, more than 50 years ago, established and defined the dividing line between the Comstock and the Baker tracts as a straight line north of the dam, marking it by heaps of stones and posts, and that they and their successors ever since, down to a time shortly before the alleged trespass by the defendant, had always recognized and acquiesced in the boundary thus established. This claim, if supported by proof, would render the meaning and effect of the original distribution quite unimportant, since

the line thus agreed on by the parties in interest, and so long acquiesced in by their successors, would thereby become the true boundary for all purposes. The court so charged the jury, but with the addition of this qualification: "Provided, of course, that the original parties establishing it, or acquiescing in it, had knowledge of the facts in relation to the description in the distribution when they established or agreed to it." These instructions were probably based upon a misconstruction of the opinion of this court in Perry v. Pratt, 31 Conn. 433. That was an equitable proceeding to establish a lost boundary. The original boundary had been a saltwater creek, which in course of years had changed its bed by avulsion; and it was claimed that the adjoining proprietors had acquiesced in it, as a boundary, in its new course. The court held that such an acquiescence, continued for 15 years, with knowledge of the facts as to the change of bed, would establish a new line of division. But the knowledge thus required related only to the changes in the physical condition of the boundary. It was not enough to show that the parties acquiesced in the continuance of the creek as marking the boundary between them, unless it was also proved that they knew it had changed its bed. So, in the case at bar, the acquiescence of the adjoining proprietors in the new line must have been with knowledge of the facts relating to the situation and marking of such line, but it was not necessary to show that they, or any of them, knew of the terms, or even of the existence, of the original distribution. For this reason there is error in the judgment appealed from, and a new trial is ordered. The other judges concurred.

DUNHAM et al. v. BOYD. (Supreme Court of Errors of Connecticut. June 29, 1894.)

EVIDENCE-MATERIALITY-PLEADING-FRAUD.

1. Testimony of a corporation secretary that he has an impression that, at a meeting seven years ago, plaintiffs, transferees of part of defendant's stock, voted on the stock still standing in defendant's name, as evidence that plaintiffs did vote said stock,-thus tending to prove that they treated it as their own, and that they had taken it in payment of defendant's debt to themselves,-is too remote on the issue of payment.

2. The materiality of evidence, and its connection with the other evidence produced, must be shown in the trial court.

3. A plea to a complaint on a note, which alleges that plaintiffs held defendant's stock in a company as collateral, and so managed said stock that it became entirely lost, is not sufficient as a plea of recoupment on the ground of bad faith in managing the company.

Appeal from superior court, Hartford county; George W. Wheeler, Judge.

Action by John Dunham and others against James A. Boyd on three promissory notes. Judgment for plaintiffs. Defendant appeals. Affirmed.

HAMERSLEY, J. The defendant claims that the evidence offered and excluded was admissible in support of both his defenses.

1. The issue of fact raised by the first defense is, did the plaintiffs and defendant, before the defendant's note became due, agree that the stock held by the plaintiffs as collateral security for the note should be owned by the plaintiffs, and received in full payment of the note? The fact that the payment of the note? plaintiffs subsequently treated the stock as their own property would be relevant to that issue. Any fact tending to show that the plaintiffs had treated the stock as their own would be a relevant fact, and the defendant claims that portions of the deposition of Rossman tend to show that fact. The testimony of Rossman on this point is substantially as follows: "I was secretary of the Anoka Pressed-Brick & Terra-Cotta Company in the fall of 1885, and kept the books of the company, and remained secretary until after March 1, 1886. At some meeting of the company, between October 15, 1885, and March 1, 1886, I think the plaintiffs represented defendant's stock by voting on the stock. That is my recollection. The books will show. I do not remember how much stock the defendant had. I am not positive whether more than twenty shares of his stock was ever transferred to the plaintiffs. It is not for me to say whether they could vote on stock not transferred to them. I think they did vote on stock standing in the name of the defendant. I am not positive. I cannot say positively whether the defendant himself was present at any of the meetings of the company during this time. The minutes will show." If this evidence is admissible, it must be so because the fact claimed to be proved by it-that the recording officer of this corporation has an impression (of which he is not positive) that at some meeting of the corporation, held seven years before, the plaintiffs, who were stockholders by transfer of a portion of the stock formerly standing in the defendant's name, voted on the balance of the stock still standing in the defendant's name-is relevant as tending to show the fact that the plaintiffs did vote on the defendant's stock, which fact is relevant as tending to show the fact that the plaintiffs had treated the stock as their own property, which fact is relevant as tending to show the fact in issue as alleged in the first defense. The trial judge thought that this evidence, whether relevant or not, was, under all the circumstances of this case, too remote to be material, and excluded the evidence. We cannot say that such ruling was erroneous. The exhibits offered in connection with Rossman's testimony are clearly irrelevant to any issue raised by the first defense.

prove bad faith on the part of the plaintiffs in the reorganization of the company, it was properly rejected, because the question of bad faith on the part of the plaintiffs in the reorganization of the company was not a fact at issue in the case, unless connected with some mismanagement of the defendant's stock held by the plaintiffs as collateral security. If the defendant really claimed that the plaintiffs had got control of the corporation, and had so managed its affairs as to destroy the value of all its stock, and was therefore responsible to the defendant in damages, which he could recoup in this case, he should have pleaded such defense. The second defense simply alleges that the plaintiffs held the defendant's stock as collateral security, and so managed said stock that the same became entirely lost. The evidence excluded is not relevant to the issue raised by this defense. It does not tend to prove any management of the defendant's stock by the plaintiffs to the injury of the defendant, either by itself or in connection with other evidence, and the court expressly finds that there was no other evidence of neglect or mismanagement in relation to the stock held as collateral by the plaintiffs.

We have treated portions of the deposition of Rossman as if offered in evidence, and excluded by the court below, but the record does not show this to have been done. The finding says that the defendant offered portions of the deposition of Rossman, but does not specify what portions. A stipulation of counsel, printed with the record, states that the counsel agree "that the whole deposition be printed, and that the parts thereof which tend to sustain the defendant's claim as stated in the finding are the portions which were excluded by the court." The counsel do not attempt to specify the testimony which was offered and excluded, and this court is asked to dissect a deposition filled with objections, and which, as a whole, was not offered in evidence, to determine what portions tend to support the defendant's claim, and to grant a new trial on the assumption that such evidence was excluded by the court below, when there is nothing in the record to show that it was in fact offered. We cannot so supplement a finding, and in this case, if it had not been clear from the whole record that a new trial ought not to be granted, whatever portions of the deposition may have been offered, or if our attention had been directed to the irregularity before argument, we should have insisted on the record being properly amended. A new trial is denied. The other judges concurred.

ELWELL v. HACKER et al.

establish some neglect of duty on the part of the master arising out of the relation between them, which was the direct cause of the injury, and which the master was bound to guard against.

2. Ordinarily, the question of due care and of negligence is one of fact for the jury.

3. But where the facts are undisputed, and there is no evidence, or the evidence is too slight or trifling to be considered by the jury, then it is the duty of the court to order a nonsuit.

4. A case must not necessarily be submitted to the jury because there is a scintilla of evidence. There must be evidence having legal weight.

5. If evidence is to be offered showing that the injury was received through the negligence of the master in selecting or employing incompetent fellow servants, the declaration must contain such averment, otherwise the evidence is not admissible.

(Official.)

Exceptions from supreme judicial court, Cumberland county.

Action by John O. Elwell against Edward S. Hacker and others. To an order directing a nonsuit, plaintiff excepts. Exceptions overruled.

J. J. Perry and D. A. Meaher, for plaintiff. Barrett Potter, for defendants.

FOSTER, J. This is an action to recover damages for personal injuries sustained by the plaintiff by the fall of a staging which he was taking down while in the employ of the defendants.

The case comes up on exceptions to the ruling of the judge of the superior court in directing a nonsuit at the close of the plaintiff's evidence.

To maintain an action against his employer for an injury such as the plaintiff claims, he must establish some neglect of duty on the part of the defendants, arising out of the relation between them, which was the direct cause of the injury, and which, as matter of law, they were bound to guard against.

In this case there is no evidence upon which a verdict would be sustained showing any negligence on the part of the defendants. In such case, if, upon the unquestioned facts and uncontroverted testimony, it is apparent that the plaintiff's action cannot be maintained, it is not only competent, but proper, for the presiding judge so to declare by directing a nonsuit. White v. Bradley, 66 Me. 254. Ordinarily, the question of due care and of negligence is for the jury. Especially is this true when the facts bearing upon those questions are in dispute (Larrabee v. Sewall, 66 Me. 376; Aigen v. Railroad Co., 132 Mass 423); or even when the facts are undisputed, and intelligent and fair-minded men may reasonably arrive at different conclusions (Nugent v. Railroad, 80 Me. 62, 70,

1894.)

MASTER AND SERVANT-NEGLIGENCE-PRACTICE

PLEADING.

1. To maintain an action against his employer for personal injuries, the servant must

disputed, and there is no evidence, or the evidence is too slight or trifling to be considered by the jury, then it is the duty of the court to order a nonsuit. Where the